Table of Contents
L1: SPECTRUM OF DISPUTE RESOLUTION OPTIONS ............................................................................. 3
VARIABLES IN THE SPECTRUM .................................................................................................................. 3
L2: THE ADVERSARIAL SYSTEM ....................................................................................................................... 5
LITIGATION ........................................................................................................................................................ 5
L3: NEGOTIATION .................................................................................................................................................... 7
DEFINITION ........................................................................................................................................................ 7
KNOWLEDGE & SKILLS REQUIRED TO BE AN EFFECTIVE NEGOTIATOR ................................ 8
MODELS OF NEGOTIATION .......................................................................................................................... 9
POSITIONS v INTERESTS............................................................................................................................... 9
MEDIUMS USED TO NEGOTIATE.............................................................................................................. 10
ETHICAL OBLIGATIONS ............................................................................................................................... 10
AGENDA.............................................................................................................................................................. 10
INEQUALITY OF BARGAINING POWER ................................................................................................. 10
L4: MEDIATION ....................................................................................................................................................... 11
DEFINITION AND PURPOSE ....................................................................................................................... 11
THE MEDIATION PROCESS ......................................................................................................................... 11
BOULLE’S 4 MODELS OF MEDIATION .................................................................................................... 13
ROLE OF LAWYERS IN MEDIATION ........................................................................................................ 14
L5: CONCILIATION ................................................................................................................................................. 15
PLAIN ENGLISH DEFINITIONS .................................................................................................................. 15
NADRAC DEFINITION ................................................................................................................................... 15
RESIDENTIAL TENANCY AUTHORITY ................................................................................................... 15
CONCILIATOR CORE COMPETENCIES ................................................................................................... 16
LAWYERS IN CONCILIATION ..................................................................................................................... 16
L5: ARBITRATION .................................................................................................................................................. 17
NADRAC DEFINITION ................................................................................................................................... 17
KEY FEATURES OF ARBITRATION .......................................................................................................... 17
ARBITRATION vs EXPERT APPRAISAL .................................................................................................. 17
UNIFORM ARBITRATION LEGISLATION ............................................................................................... 18
ADVANTAGES AND DISADVANTAGES OF ARBITRATION ............................................................. 18
L6: COMMUNICATION SKILLS .......................................................................................................................... 19
TYPES OF COMMUNICATORS .................................................................................................................... 19
COMMUNICATION STRATEGIES .............................................................................................................. 19
COMMUNICATION TECHNIQUES ............................................................................................................. 20
L7: UNDERSTANDING DISPUTES ........................................................................................................ 21
WHAT IS CONFLICT ....................................................................................................................................... 21
TYPES OF CONFLICT ..................................................................................................................................... 21
DIAGNOSIS OF THE CONFLICT.................................................................................................................. 22
L8: ISSUES FOR VULNERABLE PARTICIPANTS ............................................................................... 23
POWER ISSUES ................................................................................................................................................ 23
ASSUMPTIONS ABOUT POWER IN DR CONTEXTS ............................................................................ 23
Page 1
SOURCES OF POWER..................................................................................................................................... 23
CONTEXTS FOR POWER IMBALANCES.................................................................................................. 24
MEDIATOR’S ROLE WHERE POWER IMBALANCES.......................................................................... 24
USING POWER – FROM POWER TO PERSUASION ............................................................................ 24
RELEVANCE OF CULTURE .......................................................................................................................... 24
L9: RESTORATIVE JUSTICE ............................................................................................................................... 25
POLICY OBJECTIVES OF ADR ..................................................................................................................... 25
RESTORATIVE JUSTICE ................................................................................................................................ 25
JUSTICE MODEL vs WELFARE MODEL .................................................................................................. 25
RESTORATIVE JUSTICE AS A RESPONSE TO THE JM AND WM ................................................... 25
VICTIM-OFFENDER MEDIATION AS A MANIFESTATION OF RJ .................................................. 26
IMPORTANCE OF RJ IN YOUTH CONTEXT ............................................................................................ 26
FACING THE DEMONS – DVD..................................................................................................................... 26
L10: FAMILY LAW AND DISPUTE RESOLUTION ............................................................................. 27
CHARACTERISTICS OF FAMILY LAW DISPUTES ............................................................................... 27
SPECTRUM OF FAMILY DISPUTE RESOLUTION ................................................................................ 27
RE F LITIGANT IN PERSON .......................................................................................................................... 27
WAYS TO CATEGORIES DISPUTE RESOLUTION PROCESSES ....................................................... 27
PRIMARY PROCESSES ................................................................................................................................... 28
FAMILY RELATIONSHIP CENTRES (FRC) ............................................................................................. 28
CONFIDENTIALITY ........................................................................................................................................ 28
FACILITATIVE MEDIATION ........................................................................................................................ 29
ADVISORY MEDIATION ................................................................................................................................ 29
FAMILY LAW DR REQUIREMENTS .......................................................................................................... 29
LESS ADVERSARIAL TRIAL (LAT) ........................................................................................................... 30
LEGAL AID CONFERENCES ......................................................................................................................... 30
ARBITRATION .................................................................................................................................................. 30
L11: DIAGNOSING DISPUTES ........................................................................................................................... 33
SELECTING A PROCESS ................................................................................................................................ 33
A Matrix for Assessing the Suitability of Processes for Disputes ................................................. 34
WHEN IS MEDIATION NOT APPROPRIATE ......................................................................................... 35
DRAFTING DR CLAUSES .............................................................................................................................. 35
MOST COMMON MISTAKES BY LAWYER REPRESENTATIVES .................................................... 35
THE 5 HUMBLE HYPOTHESIS.................................................................................................................... 35
7 PRINCIPLES FOR ADVISING ................................................................................................................... 36
L12: ETHICS .............................................................................................................................................................. 36
KEY ISSUES IN NON-ADVERSARIAL PRACTICE ................................................................................. 36
ADR MOVEMENT – UNREGULATED ....................................................................................................... 36
Page 2
L1: SPECTRUM OF DISPUTE RESOLUTION OPTIONS
Parties reach solution
themselves
Walking
Negotiation
Mediation
Third party
imposes solution
Facilitative Evaluative
mediation mediation Case-appraisal Med-arb
Degree of informality
Arbitration
Court
Degree of formality
VARIABLES IN THE SPECTRUM
There are many different variables that determine a dispute resolution process. Some are:

Time it will take to reach a conclusion

Cost of the process to parties

Degree of formality involved

Level of applicability of procedural rules

Level of preparation required

Level of formal documentation associated with the process

Level of legal representation allowed/required

Degree of third party intervention regarding the final decision/settlement outcome

Degree of consensuality – eg. whether parties enter into option voluntarily or whether
have been ordered by a court
Page 3
Page 4
L2: THE ADVERSARIAL SYSTEM
LITIGATION

A way of resolving legal disputes by taking the dispute to court

Applicant / plaintiff makes application and defendant responds

Format:

Procedural steps  Rules of Evidence  Discovery process

Filing / serving documents

There are many court events along the way: mentions, interim hearing, before the final
trial / hearing in court and decision (court order)
Arguments in favour of party control



Liberalism – reflects role of state; individual
control and maintenance of rights; zone of
privacy around private domain
More cost-effective for the State
Maintains judges role as independent and
objective (as parties are in control)
Arguments against party control

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Advantages of Adversarial System

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
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Opportunity for both parties to present case
Parties get “their day in court”
Procedural protections: rules of evidence
The ability to test statements and information
in cross-examination
Openly conducted hearing
 “fairness” of process
Individual rights
Third party makes a decision for the parties
Independent and impartial adjudication
Creates precedent
Decision legally binding
 Can be enforced
 Third party can review outcome to
ensure just and equitable
Law Council ALRC89 (1999)
Only information presented is what parties want
presented
Becomes “contest” between advocates
Combative nature of adversarial proceedings
escalates conflict
Would be advantages in earlier involvement of the
judge
Expensive for parties
Disadvantages of Adversarial System

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

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

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

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Escalates conflict
Labour intensive: expensive
Time consuming
Long court waiting lists
Complicated
 documents
 concepts
Frustrations with rules of evidence/ procedure
Tactical manoeuvring
Bias and unreliable witnesses
Doctrine of precedent limiting
Both may not be happy with the decision
Unfairness if:
 One party unrepresented
 Inequality of legal representation
Difficulties for self-represented litigants
Parties don’t always comply with court orders
Discourages compromise and looking to the future
Law Council ALRC89 (1999)
Page 5
Adversarial system:
 A contest
 Party controlled dispute: the parties institute proceedings, define the issues to be
determined and each has the opportunity to present his/her argument (Law Council
ALRC89 (1999))
 Role of judge: to be neutral and objective and to determine the outcome
 In Australia, Family Court and tribunals have moved towards more inquisitorial system
Role of Legal Representatives in Adversarial System:
 Only present what information will advance their client’s case
 Object is to “win” on behalf of client
 Present the evidence (prepare court docs, subpoena witnesses, conduct EIC and XE)
 However, their role is subject to a duty to the court and a duty to the client
Role of judge in Adversarial System:
 Neutral, independent and impartial umpire
 Ensure fair and proper procedures followed
 Decide questions of law
 Decide questions of fact (when no jury)
 In the main, does not question witnesses
Why may a client want to avoid litigation?
 Fear of going to court and giving evidence
 Legal costs
 Unable to obtain legal aid
 Avoid bad publicity / loss of reputation
 Public embarrassment (violence and alcohol / fraud / illegal)
 Disclosure of undesirable information (eg. tax evasion)
 Client wishes to avoid time and stress
Parties to a dispute in the adversarial system:
 View each other as adversaries
 Focus on the past
 Seek to establish the truth of objective facts
 Seek to prove their story is right
 Seek to lay blame
 Seek to win at the expense of the other party
This escalates the conflict as:
 The dispute is being approached from a positional point of view;
 Parties are magnifying points of difference by focusing on the past
Page 6
L3: NEGOTIATION
DEFINITION
Negotiation is a process in which two or more people engage in discussions to see if they
can reach agreement.
Subject of Neg

An orange
Things to Note / Positions v Interests



Two people disputing, both want the orange – could cut it in half
Think about the elements of the orange, why they want it – their
interest
One may want it for the rind, one for the juice! = agreement!

A child



Emotional negotiation
Only one child (not like money which can be replaced)
Really important to look at interests, not positions

Money

More of a concrete thing, a number of options
In a legal context:

Clients negotiating together approach lawyers

Lawyers negotiating on behalf of their clients

Lawyers and clients together at a forum, negotiating towards settlement (mediation /
conciliation)
Why is learning about negotiation important?

Negotiating is an important skill as it can mean the difference between reaching an
agreement or not, achieving a fair outcome or not and the client feeling supported
through the negotiation process or not.
Advantages of Negotiation



Parties with their lawyers are
in best position to assess
proposed solutions
Compromise often offers
parties at least some of what
they want
 (note: court may not give
them any of what they
want)
Parties might not resolve all
issues but may narrow them
Disadvantages of Negotiation





If adequate preparation not carried out a party
can agree to a settlement outcome well below
what a court may order
May not have valuations, adequate medical
evidence etc to properly assess case
Lawyer may not know the law and be able to
bargain effectively
A party may agree to an unfair agreement due to
inequality of bargaining power/coercion
A party may feel that they were pushed too far or
coerced into an agreement by their lawyer
Page 7
KNOWLEDGE & SKILLS REQUIRED TO BE AN EFFECTIVE NEGOTIATOR
Knowledge of:
 Client, their underlying interests, personality, strengths and weaknesses, bottom line
 Client’s factual case
 The relevant law and how to apply it to the facts
 Court procedure so that correct documents filed and discovery completed
 Dispute resolution eg. negotiation models, structure to most effectively negotiate
Negotiation and professional ethics
 Any existing or possible power imbalances
 Any cultural negotiation differences
Dispute resolution and interpersonal skills:
 Thorough and thoughtful preparation
 Identifying objectives
 Being realistic about outcomes
 Option generation
 Identifying underlying interests (aka hidden agendas)
 Meeting and greeting and establishing a negotiation ‘atmosphere’
 Understanding the other party’s needs and interests
 Picking up any hidden issues/agendas
 Communication skills:
 Interpersonal skills: eg. open body language and eye contact
 Listening actively and effectively
 Expressing yourself clearly and assertively
 Controlling anger and emotions eg. reframing and summarising
Good negotiation skills include “the 3 A’s” (Spegal et al):
 Attitude:
 being positive, confident, believing that a successful outcome is possible and
being prepared to work towards it;

Awareness:
 sensitivity to messages coming from other side, being alert to what other person
is saying and not saying (listening)

Accountability:
 as a negotiator you are accountable for the negotiation’s outcome: preparation,
flexibility and skill, evaluating the process and what you could do better next time
ie. being a reflective learner.
Page 8
MODELS OF NEGOTIATION
Type
Is
Adversarial


Win / lose
Uncompromising
Distributive


Division of what needs to be negotiated to various parties
Positional and still quite adversarial
Integrative


Quite positional, but seeing whether there can be some compromise
Based on trade-offs
Principled

Looking at interests and trying to come up with a mutually agreeable
decisions

Sometimes may start with principled, but may have to incorporate other models –
shouldn’t start off with the adversarial model!

Limitations of the principled model (Spencer and Hardy):

Not all scenarios may fit this model

Does not take into account that one or both parties may not be interested in
finding a mutually agreeable solution
-
In such cases, parties may not be prepared to share relevant information
so that a fair outcome can be achieved
POSITIONS V INTERESTS

Interest: statement of what client wants

Position: underlying concerns / things that client really want to achieve (WHY they
want something)

Eg. orange:
 what they want is the orange
 why they want it, either for the rind or juice
Booth v Bosworth:

If had looked at interests, may have been decided differently:
 Conservationists wanted the bats to stop being killed
 Lychee farmers wanted the bats not to get the lychees
Page 9
MEDIUMS USED TO NEGOTIATE
Advantages of In-Person Negotiation

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

Parties can see each other’s facial
expressions and body language.
Can create more direct communication
channels: not have difficulties of
misunderstandings that may occur
when communicating via letter, email,
and messaging.
Can assist with overcoming
communication problems and reducing
conflict.
May be more effective in achieving an
outcome that covers all or many
underlying interests.
Disadvantages of In-Person Negotiation





May be threatening when there are
power imbalances.
May be unsafe when violence has been
a factor.
Can be used as a tactic by one party to
coerce other party to unfair outcome:
 eg. using intimidation, threatening
behaviour etc
May be too stressful for one party.
May be inconvenient/ too expensive for
geographic or other reasons.
ETHICAL OBLIGATIONS


Cannot lie, mislead, exaggerate or not disclose relevant information
Some legitimate tactics that can be used are:
 Preparation of case to give the upper hand.
 Investigate options prior to going into negotiation and reality test them with client
 Ensure that an agenda is created that covers ALL of your client’s interests
 Prioritise the agenda so that client’s key interests are first (in case you run out of
time/ goodwill)
 Be assertive and use reframing and summarising skills
AGENDA



List of issues parties need to be resolved
Forms a structure for the negotiation
Issues need to be prioritised
INEQUALITY OF BARGAINING POWER
Can be caused by:

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Seniority / familiarity with case / levels of aggression (lawyers)
Cultural / Gender issues
Violence
Personality issues: levels of assertiveness
Timing
Knowledge
Resources / Possession
Acknowledgement that issues can arise of: party vulnerability, inequality of bargaining
positions and potential injustices in terms of process and outcomes

Eg. different cultures communicate in different ways and so negotiate in different way
Page 10
L4: MEDIATION
DEFINITION AND PURPOSE

A third party supports the parties in a dispute to negotiate a mutually satisfactory
outcome

Purpose:
 Party self-determination
 Empowerment
 Remedial imaginations
 Interests can be served, positions can be contextualised / broken down
THE MEDIATION PROCESS
Pre-Mediation / Intake Phase:

Takes place in many mediation processes

Intake process undertaken by either:
 Mediator or
 Administrative officer
 Eg. legislative requirements to undertake intake in family law

Prior meeting/s / telephone conversation/s to:
 Understand dispute
 Ensure process suitable
 Discussion of process and costs
 Reading and signing re Agreement to Mediate
 Ensure parties come prepared
Mediation Process – First Steps:

Preliminaries: welcome and introductions

Mediator’s opening statement
 Explain process and role of private meetings
 Explain objectives
 Clarify role of mediator and parties
 Clarify non-adversarial role of lawyers (if present)
 Set some guidelines for conduct
 Explain confidentiality (as far as law allows)
 Time-frame and any time restraints
 If agreement reached option of written agreement

Parties’ statements
 One at a time the parties will talk about:
- The background to the dispute; and
- What they want to sort out at the mediation
 Mediator uses questions to elicit their underlying interests
 Goal that each party hears the other party’s perspective of the dispute
 Can assist to resolve communication problems

Identifying areas of common ground (isolating the issues)
Page 11

Agenda: defining and prioritising the issues
 Mediator works out with the parties a list of common issues that will form the
structure for the meeting
 They are worked out based on interests not positions
 The agenda items should be:
- mutual
- neutral
 They can be framed in the form of questions (eg. “Where will the children live”)
 It is important that your client’s most important issues are at the top – in case run
out of time / goodwill
Mediation Process – Problem-solving Steps:

Mediator will aim to engage parties in constructive communication.

Option generation
 Development and exploration of options
 Evaluation and selection of options

Bargaining/ Negotiation phase
 In some models will commence as interest-based
 Later distributive/integrative may take over particularly towards the end!
Mediation Process – Separate Meetings:

Can occur at any time after agenda has been agreed upon

Break the tension: time and space

Useful for advancing aspects of client’s case that will further their interests

Evaluative mediator:
 talk to client about prospects if case proceeds to court
 Pressure to settle! CAUTION

Opportunity to “reality test” proposals

Can include “significant others”
Mediation Process – Final Phase:

Final decision-making

Recording the decisions
 Usually written and signed by parties and their lawyers (if lawyers present)
 Lawyers should ensure client understands agreement and implications

Closing statement by mediator

Termination of mediation
Page 12
BOULLE’S 4 MODELS OF MEDIATION
1. Facilitative: one we’ve talked through – traditional model

Mediator = neutral, impartial third party

Decision making and solution generation is left mainly with parties

Want to have at least partial agreement to some issues

Mediator’s role: process role

Trying to achieve: Outcome
2 / 3. Evaluative (/ Settlement):

Mediator will make suggestions, within their competence, can’t give legal advice
etc outside competence

Will use expertise

Sort of mediation that increasingly market is wanting

Parties want to be able to say “now put an evaluative hat on and tell us what
would happen if it went to court”

Then, if still not working, might want mediator to make decision for them

Mediators are jumping in… Would need to have different system of ethical
conduct for mediators then

Trying to achieve: Outcome
4. Transformative:

What facilitative does anyway?

How parties in disputes spiral down and lose control of how they can manage

Trans about transforming that loss of control back to parties having control over
dispute

Not actually focused on getting outcome – outcome might be that parties are
transformed in how they communicate with each other, and no problem/dispute
has actually been solved, contrasted with facilitative which really is problemsolving

Some are cynical

In four hours how much can you really transform the parties…?

Mediator neutral to outcome but not neutral in transforming the parties

Also narrative model – even more therapeutic

Trying to achieve: Skills for future
Also: Narrative:

Mediator openly acknowledge not neutral, engaged with parties, work with them
to unpack dispute and build up new narrative to move forward

Trying to achieve: More therapeutic, reconstruct positive way forward
Page 13
ROLE OF LAWYERS IN MEDIATION

Lawyers may or may not be present during the mediation. Their functions can be
broken down into before, after and during.
Lawyer’s role before mediation:

Suitability of mediation
 Ensure appropriate dispute resolution process
- There is a duty to inform client of DR options – derived from common law,
statutory obligation, ethical duty and/or court practice directions
 Advocate for appropriate structure to suit client

Process advice: steps in dispute resolution process

Content advice: legal advice

Support function: assisting and supporting client towards the process

Preparing/coaching client
 Required role client will play
 Coach client in readiness for this role
 Assist client prepare opening statement
 Attend to any information gathering/documents client needs
 Assess BATNA (what is the best result we can hope to achieve if we don’t settle?)
and WATNA (what is the worst outcome that may occur if we don’t settle?)

Preparing documents/evidence

Discussing and signing an Agreement to Mediate
Lawyer’s role after mediation:

Lawyer debriefing client
 Process
 Content

Explanation of agreement reached and the legal implications

Q of making the agreement legally binding
 How this can happen?
 What are the legal consequences if the agreement is then breached?

Dealing with second thoughts/disillusionment???

What if agreement has not been reached?
 What are our options now?
Consensuality: There should be no compulsion to reach agreement. The reality is that
much mediation these days is that mandated by statute or court ordered
Informed consent:



Required in order to make self-determination real
Lawyers have a significant role in assisting to ensure informed consent is achieved
The parties and mediators also have responsibilities
 Some mediators have ethical concerns re assisting informed consent and
breaching neutrality / impartiality
Page 14
L5: CONCILIATION
PLAIN ENGLISH DEFINITIONS

Informal discussions between parties and an external agency to void, resolve or
manage a dispute

The state of manifesting goodwill and cooperation after being reconciled
NADRAC DEFINITION

A process in which the parties to a dispute, with the assistance of a conciliator, identify
the issues, develop options, consider alternative and endeavour to reach agreement.

The conciliator may have an advisory role but not a determinative role.
 May advise on the content of the dispute
 May make suggestions for settlement
 May give advice on likely settlement terms
 May actively encourage parties to settle
Similarities between
Mediation* and Conciliation




Differences between
Mediation* and Conciliation
Mediator and conciliator are an
impartial third party
Both processes identify disputed
issues, develop options, consider
alternatives and try to reach an
agreement
Neither mediation or conciliation are
determinative processes
 Conciliator may advise on likely
outcomes, but won’t decide
dispute
Both mediator and conciliator determine
the process to be used





Conciliator may have an advisory role
regarding the content of the dispute –
mediator does not
Conciliator may advise on the outcome
of a dispute
Conciliator may suggest terms of
settlement
Conciliator may give expert advice on
potential court outcomes
Conciliator may actively encourage
parties to reach an agreement
 Mediator won’t push for
agreement
* Note:
 Referring to facilitative mediation;
 Evaluative mediation is more similar to conciliation, but it may be seen as a
contradiction to pure mediation definition
RESIDENTIAL TENANCY AUTHORITY

Shift from mediation to conciliation (in landlord / tenant disputes) because:

Parties needed information about their legal rights so could make informed
decisions

Mediation took too long

Conciliator could use active strategies to help parties settle (eg. suggest options)
Page 15
CONCILIATOR CORE COMPETENCIES

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

Analysis
 Assess the issues
 Seek out necessary information
Objective empathy
 Establish rapport
 Focus parties on interests
Inventiveness and problem-solving
Interpersonal skills
Strategic direction
Legislative framework
Expert knowledge
Multiple roles
Personal flexibility
Self-efficacy: personal power and psychological strength
Managing expectations
LAWYERS IN CONCILIATION
Advantages of Lawyers










Disadvantages of Lawyers
Support role to client
Can model co-operative non-adversarial
negotiation behaviour
Assist parties:
 provide relevant information (documents
etc)
 to focus on interests
 with option generation
 integrative bargaining
 reality testing
 with terms of settlement
Draft the agreement:
 explain the agreement to client
 consequences of non-compliance
 file the agreement in court
‘Shadow of the law’
Advise on what the law is ie. legal rights
So client can make informed decision
Stop client agreeing to unrealistic settlement
 maintain assertiveness
 not let them be worn down by people and
process; or
At least talk them through this and reality test
Deal with second thoughts / regrets

Particularly:
 If not familiar with dispute resolution
process
 If not familiar with the relevant law

Attempt to interfere with process and
structure
 Cut through opening statements
 Request shuttle conciliation in
separate rooms

Can model adversarial behaviour

Can entrench positions (particularly
unrealistic position if doesn’t know the law
well enough)

If inexperienced won’t be assertive enough
with unrealistic client

Can give up on the negotiation process

Can be impatient with time
Page 16
L5: ARBITRATION
NADRAC DEFINITION

A process in which the parties to a dispute present arguments and evidence to an
arbitrator who makes a determination.

Determinative DR processes involve a DR practitioner evaluating the dispute and
making a determination. The decision made by the practitioner is called an award.

Note: arbitration is most commonly used in commercial contexts
KEY FEATURES OF ARBITRATION







Adversarial process
Private
Can be voluntary or mandatory
Impartial third party (arbitrator) provides a decision based on law
Parties (usually) select the arbitrator
Arbitrator is often an expert in the field of the dispute (a barrister or retired judge)
In Australia, governed by statute
Similarities between
Arbitration & Litigation




Differences between
Arbitration & Litigation
Adversarial
Impartial third party makes binding
decision
Lawyers often involved to argue case
A formal process where parties may
agree to have the rules of evidence
apply
Similarities between Arbitration and
Litigation has seen debates as to whether
Arbitration should be classified as ADR.




With the exception of court-ordered
arbitration, requires the consent of
parties
Private (as opposed to a public hearing
in a court)
Arbitrator usually selected by parties
(cf: judge)
Result binding only on the parties to the
case (no precedential value)
ARBITRATION VS EXPERT APPRAISAL

Expert appraisal is a process in which a dispute resolution practitioner, chosen on the
basis of their expert knowledge of the subject matter (the expert appraiser),
investigates the dispute.

The appraiser then provides advice on the facts and possible and desirable outcomes
and the means whereby these may be achieved.

How are appraisals different to arbitration?

No determination is given by the appraiser

Expert appraisals are not binding (although parties can choose to be bound by an
expert appraisal but then it’s called an expert determination.
Page 17
UNIFORM ARBITRATION LEGISLATION

Features of the Commercial Arbitration Act 1990 (Qld):
 Voluntary,
 Choice of expert arbitrator with expertise,
 Private,
 No formal reporting, no precedential effect,
 Not bound by formal rules of evidence,
 Awards are binding,
 Courts reserve right to determine prelim points of law,
 Limited grounds for judicial review.

Limited grounds for review:
 On a point of law if both parties consent or with leave of the Supreme Court (s 38)
 Misconduct or improper procurement of an award (s 42)
ADVANTAGES AND DISADVANTAGES OF ARBITRATION
Advantages of Arbitration







Disadvantages of Arbitration
Party control – ability to present views,
input re process, choice of third party
decision-maker.
Private
Generally quicker and cheaper than
court
Final enforceable decision which lies in
the hands of an impartial arbitrator
Objective process – expert evidence
possible, third-party decision maker.
Legal representation addresses power
imbalances





Achieving an outcome does not depend
on the goodwill or cooperation of
parties
Limited applications - mainly relevant to
commercial disputes
Process favours wealthy as often
involves substantial costs and the use
of advocates
Objective, legalistic nature fails to
adequately address conflicts where
there are personal or emotional issues
that are relevant
Adversarial process (although arbitrator
can take on a more inquisitorial role
than a judge)
Limited scope to monitor extensive
arbitrator power (danger of abuse of
power)
Thought: Is arbitration just a private form of litigation?
Page 18
L6: COMMUNICATION SKILLS
TYPES OF COMMUNICATORS
Conscientious:
 Introverted and task orientated
 Needs high standards, to be appreciated
 Fear criticism and imperfection
 Reserved and focused on immediate task
 Systematic approach to work
 Prefer to plan for change
 Can be cautious and inflexible
 Need help to adapt and think creatively
Director:
 Extroverted and task orientated
 Driven by results, recognition and
challenges
 Confident, takes the lead
 May appear arrogant
 May use adversarial approaches
 Not always good team players
Stabiliser:
 Introverted and people orientated
 Reserved, but work well in teams
 Accommodating of others
 Slow to recover if hurt
 Prefer steady vs sudden change
 Need security, fear isolation and standing
out
 Patent, loyal tactful
 May be prone to procrastination
Influencer:
 Extroverted and people-orientated
 Like change, new ideas, cooperation
 Fear disapproval
 Outgoing, enthusiastic, optimistic
 Big picture orientated, not good on detail
 May appear disorganised
 May speak before they think / talk to much
COMMUNICATION STRATEGIES



Non-verbal communication

84% of communication is non-verbal

Posture

Eye contact

Use of voice (tone, pace, vocal variation)

Body language
Active listening

Maintain regular eye contact

Attending skills: a posture of involvement, appropriate body motion, eye contact

Show you are listening with nods, mms

Focus on discovering client’s interests

Use communication techniques [see below]
Focus on interests not positions

Interest: statement of what client wants

Position: underlying concerns / things that client really want to achieve (WHY they
want something)
Page 19
COMMUNICATION TECHNIQUES





Reflective listening:

Show empathy, acknowledge feelings

Deal with client’s feelings as well as the content

Give them appropriate amount of time to vent their feelings

Use eye contact and open body language to show interest
Summarising:

Summarising key points (legal and non-legal concerns) at appropriate times

Fogging: agreeing with all or some of the client’s statement

Broken record: repeating same thing over and over until person does what you
ask
Reframing:

Taking what someone has said and restating it in a way that it moves them
forward in the DR

Removing emotive language, reframing in a positive way

Have to be careful that client doesn’t think you aren’t listening and are just putting
a positive spin on something they’re really negative about

Reframing is used not only to change the words being used but also the context
of the party’s statement (Boulle)
- When done successfully, it can lead to a change in perspective or
perception which can lead to changed behaviour (Boulle)

Objectives of reframing:
- To remove the “sting” / detoxify the statement
- Shifting from position to interest
- Mutualising the problem
- Moving from negative to positive perception
Paraphrasing:

Relating back to someone what they have said

Shows you are listening and helps them move to next point
Questions:

Open: various answers, options to give a long answer

Closed: short answer, often yes or no
Page 20
L7: UNDERSTANDING DISPUTES
WHAT IS CONFLICT

State of negative feelings such as contempt, anger, fear or distrust (Sourdin)

Conflict can be a positive thing when it:
 Raises new ideas
 Provokes establishment of different, new or better ways of doing things
 When it is dealt with positively to be a catalyst for opportunity, progress or change
Difference between conflict and a dispute:

A dispute is a manifestation of a conflict

In DR process, the underlying conflict cannot
always be healed or resolved

Some interventions aim to address the conflict in
order to reduce disputes (eg. transformative
mediation / counselling)
TYPES OF CONFLICT
Data / Information Conflict:

Lack of information:

Misinformation

Different
 Views on what is relevant
 Interpretations of data
 Assessment procedures

Intervention:
 Reach agreement on what information is important
 Agree on process to collect that information
 Obtain correct information
 Develop common criteria to assess information
 Use third party experts
Interest / Goals Conflict:

Parties have different goals / objectives

Can’t achieve them without assistance from each other
 Eg. Father wants to maintain a relationship with daughter, mother does not want
father to see her

Interventions:
 Focus on interests, not positions
 Look for objective criteria
 Develop solutions that address the needs of all
 Search for ways to expand options
 Develop trade-offs to satisfy interests of different strengths
Page 21
Structural Conflict:

Unequal access to authority, information, resources, professional advice or time
 Eg. One party legally represented, other party not – McLibel case

Geographic, physical or environmental factors that hinder cooperation
 Eg. Parents separated and one moves interstate, other parent wants contact,
what options are there?

Time constraints

Interventions:
 Equal access to authority, information, resources, professional advice, time
 Ensure fair decision making process
 Interest based bargaining cf positional
 Change geographic, environmental factors
Relationship Conflict:

Strong emotions
 Eg. Don’t trust ex to keep to an agreement, believe they always break promises

Misperceptions or stereotypes / poor communication / the grieving process patterns of
negative behaviour
 Eg. negative intimacy

Interventions:
 Allow expression of emotions
 Acknowledge feelings
 May need to control expression of emotions through procedure / ground rules /
private meetings
 Avoid negativity through control of process
Value Conflict:

Competing ideologies, world views, religious and cultural values

Different basic assumptions about life and the universe

Different parenting styles, ways of life (lifestyle choices), morals

Interventions:
 Can each live with the other’s values?
 Search for overarching goals that all parties shares – ie. what are their interests?
DIAGNOSIS OF THE CONFLICT

Most conflicts have multiple causes – identify the central causes (often done by trial
and error) generating theories about the cause/s of conflict and testing them

Conflict is generally mistaken, genuine or contrived:
 Mistaken: real perception of conflict based on miscommunication / misinformation
 Genuine: incompatible gaols, values or personality disputes
 Contrived: party prolonging the conflict for revenge, cost to other party, to
maintain relationship with other party (negative intimacy)

Possible responses to conflict: to avoid, accommodate, compete, compromise,
collaborate

Ways to resolve conflict: identify the type of conflict, identify client’s response, then
choose appropriate dispute resolution process
Page 22
L8: ISSUES FOR VULNERABLE PARTICIPANTS
POWER ISSUES

Clients (or opponents) with power resulting from knowledge, wealth, societal standing,
education or language

Parties (or opponents) who lack power in terms of knowledge, wealth, societal
standing, education or language

Parties who are seeking your assistance to resolve their dispute are giving you power,
and respecting your knowledge and expertise

There is real negotiating power vs illusion of power (Fisher)
ASSUMPTIONS ABOUT POWER IN DR CONTEXTS
Boulle:
 Power disparities almost always exist
 Contexts for power imbalances are many and different
 Power is complex – even where imbalances, everyone has some sort of power
 The perception of power can be more important that the objective conditions of power
SOURCES OF POWER








Financial
Knowledge / understanding
Ability to harm or reward: eg. employer / employee relationship
Access to authority (including media)
Legal or moral
Reputational needs: may have reputation to uphold
BATNA / WATNA
DR Context: the person who gets to speak first in, eg, mediation
Spegel:

Knowledge power: This consists of knowledge of the other party, expert knowledge,
access to expert knowledge, independent expertise to support your argument such as
an expert witness, authority to support your argument such as legislation, precedent,
and evidence of industry practice.

Process power: Ppower in relation to the negotiating environment (such as when and
where negotiations take place, who attends, who sets the agenda etc), power in
relation to coalition building (that is, identifying and coopting allies outside the dispute
to support you), power in relation to the planning of concession manoeuvres (that is,
the ability to work out what you can live without in order to get what you want), power in
relation to generating options which will appeal to the other side, and power in relation
to having a developed Best Alternative To a Negotiated Agreement (BATNA) that you
can walk away from the negotiation feeling comfortable.

Relationship power: Confidence and charisma, interpersonal power (that is, an ability to
influence others through interpersonal strategies and skills), the power associated with
the issue of future interaction (that is, there is power in the likelihood of future
dealings), and reputation.
Page 23

Structural power: This source of power is based on structural differences between
negotiators such as the social, political and organisational structures within which
people operate, how organizations are positioned in relation to other organizations and
who controls resources. Where there are inequalities in structures, there is structural
power for at least one party.
CONTEXTS FOR POWER IMBALANCES

Cross-cultural disputes: eg. even if fluent, legal jargon will make non-English speakers
struggle in legal disputes in other countries

Juvenile crime: age issues, awkward teenage, no confidence etc

Workplace disputes: employee – unions etc, employer – can terminate employment

Insurance disputes / Corporate dispute (where one company has more money)

Family law disputes: one party might know how to annoy the other party, what they
value, what makes them happy etc.
MEDIATOR’S ROLE WHERE POWER IMBALANCES

Is the mediator’s role still to remain neutral and objective? If they intervene into the
content of the dispute to rectify power imbalances, does this mean they are no longer
neutral? Arguably, yes.

Is the answer for mediators, “Well I can’t be neutral but I can be ethical”?

If the focus is on ethics, intervention is acceptable; if it’s on neutrality, it won’t be.
USING POWER – FROM POWER TO PERSUASION

Identify your negotiation objectives (the interests you want fulfilled)

Identify your own and others’ sources of power:
 Be aware of yours and others communications styles – understanding your
strengths and weaknesses is powerful and can allow manipulation of the
negotiation in your favour

Strategise to improve your power base

Use skills and strategies to apply your power – persuasion, requires preparation
Note: Don’t just rely on one source of power!
RELEVANCE OF CULTURE

Legal system should be accessible to people irrespective of cultural background and
first language (Parkinson)

Lawyers need to understand dynamics of cross-cultural communications (Hunter &
Cronin)

Cultural sensitivity vs cultural relativism (excusing people because of their culture): do
not want to be culturally relativistic (eg. domestic violence may be acceptable in some
cultures but legally, NO!)

Improving the legal system’s approach to multiculturalism: interpreting services,
education about legal norms, educate police, courts and legal profession etc.
Page 24
L9: RESTORATIVE JUSTICE
POLICY OBJECTIVES OF ADR


To provide a better, more humane, more appropriate way for parties to resolve
disputes.
Restorative justice has this aim
RESTORATIVE JUSTICE


Opportunity for the victim to have a voice
Restorative of offenders who were silent during trial (their right, but not rehabilitative)

Mediation type activity in criminal matters between the community and the offender
 Can involve social worker, family of victim, victim, police officer etc

Distinct differences between this and the current legal paradigm
JUSTICE MODEL vs WELFARE MODEL
Justice Model
Welfare Model
If a crime is committed, it’s a matter of choice
on the individual’s part and requires
punishment
Rather than punishment for crime, takes a
more rehabilitative course, considers that not
everyone is on the same playing field (social
context is relevant)
Based on traditional liberal legal theory:
 Sees humans as rational, responsible
agents who have the ability to determine
their social circumstances and therefore
deserve punishment for flouting societal
norms with criminal conduct;
 Positions the State as the protector of
social order but also as a potential threat
to individual freedom;
 Ensures the legal system provides legal
protections for accused persons.
Welfare model is a reaction to JM:
 Grounded in communitarianism and
socialist conceptions of society;
 Sees individuals within their social
context;
 Sees the state’s actions in the criminal
justice arena as an implementation of
social policy;
 Sees the law’s legitimate role as being to
secure the social good;
 Sees the law, and courts for example, as
being ‘here to help’.
RESTORATIVE JUSTICE AS A RESPONSE TO THE JM AND WM

Both models were “wanting”

Restorative justice was a response to frustration with JM & WM failure to “cure” crime

RJ wants offenders to take responsibility for their behaviours but wants to better
prevent future criminal conduct, to protect victim and offender rights, to
integrate a sense of community into criminal outcomes, and to reject the criminal
act rather than the individual.
Page 25
VICTIM-OFFENDER MEDIATION AS A MANIFESTATION OF RJ

One approach to RJ

Usually for less serious offences (contrast DVD – perhaps too serious for it to work
effectively – no solution, because couldn’t bring son back – not replaceable)

Goals:
 To help victims cope and move on
 To have a reformative, rehabilitative, deterrent impact on offenders
 To restore “community”

Most common models:
 Pre-charge model
 Pre-sentence model (note: also mediation as part of sentencing model):
- Requires agreement of relevant court
- Consent of all parties – victim and offender
- Guilty plea of offender
Benefits for offenders:
 Can explain their context and the reasons behind committing the crime
 Can apologise and make amends
 Can understand true human impact of their actions on individuals but also community
 Can make-up for what they have done
Benefits for victims:
 Can explain the impact of the crime on them
 Can be angry, sad, disappointed – articulate
 Can experience community support for the way they feel – ie removing the isolation
 Can be apologised to
 Get compensation or reparation
IMPORTANCE OF RJ IN YOUTH CONTEXT

Re-integrative shaming tell them what they did was wrong, shame them (Braithwaite)

Requires community support structures for it to work

Separating the act from the individual (like position v interest!) – understand why
they committed the act, the circumstances

Criminal trial = degradation ceremony? VS reintegration of RJ?

Preventing deviant / destructive personality elements in youth from becoming dominant
FACING THE DEMONS – DVD






Approaches of facilitator
No attempt to excuse the crime – trying to understand it
Can context of criminals be easily understood by the victim’s family – not really
Does process leave offenders at the mercy of the victim’s family? Yes!
Makes power imbalances VERY evidence
Should programs be limited to lesser offences? Yes, I think so
Page 26
L10: FAMILY LAW AND DISPUTE RESOLUTION
CHARACTERISTICS OF FAMILY LAW DISPUTES
May be:
 High levels of conflict
 High levels of emotion
 Long history of lack of trust


Negative intimacy
Involvement of
(children)
innocent
others
SPECTRUM OF FAMILY DISPUTE RESOLUTION
Parties reach solution
themselves
Lower levels of conflict
Counselling
Negotiation
Facilitative
mediation
Third party imposes
solution
Higher levels of conflict
Collaborative
law
Advisory
mediation Concilliation LAT
Degree of informality /
lessor cost
Arbitration
Court
Degree of formality /
higher cost
RE F LITIGANT IN PERSON

Highlighted the nature of adversarial process in family law – problematic when people
involved don’t have the capacity to represent themselves.

Our legal system works best when both sides have competent lawyers, not when
people are self-represented
WAYS TO CATEGORIES DISPUTE RESOLUTION PROCESSES

Available outside or inside court
 Outside court:
- Counselling
- Negotiation
- Mediation
- Arbitration
- Expert Appraisal
- Legal Aid Conferences
- Collaborative Law

Inside court:
- Case Assessment
Conference
- Conciliation Conference
- Less Adversarial Trial
(LAT)
- Adversarial Hearing

Facilitative, advisory and determinative processes
 Facilitative – less formal
 Advisory / Determinative – more formal

Represented and unrepresented
 Instances of both throughout the process

Reportable and unreportable

Level of party self-determination
 Negotiation between parties = high levels of self-determination

Note: lawyers have a role right across the spectrum
Page 27
PRIMARY PROCESSES

Counselling:
 Usually at community/private facility
 To reconcile or adjust to separation/parent after separation

Negotiation:
 Interest-based: in terms of interests
 Adversarial: in terms of legal positions

Mediation:
 Facilitative
 Advisory

Conciliation:
 Similar to advisory mediation but within a court with court officer as facilitator

Court hearing:
 Adversarial or less adversarial
 Determinative process
FAMILY RELATIONSHIP CENTRES (FRC)

Aims:
 To move family law disputes away from the courts
 Ensure children grow up in safe environment with love & support of both parents
 First point of call for people separation

Provide information for families

Help families use other services

Provide assistance for separating families –
 Individual interviews to identify issues and options and focus on needs of children
 Group programs on parenting after separation
 “Mediation” joint sessions for parents to help them reach agreement
CONFIDENTIALITY

Exceptions to confidentiality/admissibility (Family Law Act 1975 (Cth), s10 D,E,H,J)

Confidentiality, s10H:
 Protect a child from risk of harm (physical or psychological)
 To prevent or lessen a serious and imminent threat made to life/health or property
 Report commission or likely commission of offence violence/threat or intentional
property damage or threat of damage
 To assist child rep to represent child properly
Page 28
FACILITATIVE MEDIATION

Interest-based, problem-solving mediation

Process orientated

The parties provide:
 the options; and
 the solution to the dispute

Mediator:
 Purely facilitator of communication process
 Does not suggest options
 Does not give indications of appropriate
settlement options
 Not required to be an expert in content only an
expert in mediation

Egs. At community mediation centres such as
Family Relationship Centres, Relationships Australia
ADVISORY MEDIATION

Object: to reach settlement based on legal rights
within anticipated range of court outcomes

Mediator an authority figure (eg. barrister) who
evaluated case based on experience of law and
court outcomes

Offers recommendations of how case would be
decided if proceeds to court

Note: criticized for compromising mediator’s
neutrality, once engaged in content, can no longer
be neutral
FAMILY LAW DR REQUIREMENTS
Property and financial disputes (Family Law Rules):

Pre-action procedures (Sch 1, Part 1, 3: Family Law Rules):
 Make a genuine effort to resolve dispute by participating in dispute resolution
 Duty of disclosure: parties have a duty to make timely, full and frank disclosure
Parenting disputes (s 60I FLA)

Parties must attempt family dispute resolution (eg. parenting mediation) prior to filing

Must obtain certificate from mediator setting out whether parties made a genuine effort


Accredited and registered family DR practitioner can issue certificate
Exceptions to requiring mediation first: where needed urgently, eg. domestic violence;
a history of violence; safety issues; inequality of bargaining power; risk a child may
suffer abuse; emotional, psychological and physical health of parties
Page 29
Violence and family mediation:

Situation couple violence: violence arises in particular situation

Coercive controlling violence: domination and control of victim

Separation-instigated violence: only occurs round time of separation

Violent Resistance: self-defence
What constitutes “genuine effort” (Astor, 2008):

Attending family dispute resolution , and

Willingness to consider options put forward by the other party or the family dispute
resolution practitioner, and

Willingness to consider putting forward options for the resolution of the dispute, and

Willingness to focus on the needs and interests of the children, to the best of the
parties’ ability (Astor, 2008).
Child inclusive mediation:

Perhaps not a good idea if domestic violence

Could bring an object of child’s into room to get parent’s to focus on looking at what is
best for the child
LESS ADVERSARIAL TRIAL (LAT)











The judge controls the hearing process and its inquiry, not the lawyers
A family consultant is in court from first day as an expert adviser to judge and parties
The parties can speak directly to the judge to tell in their own words what the case is
about and what they want for their children
Hearsay evidence can be admitted
The trial starts when the parties first meet the judge
It may finish on the first day or further meetings to continue the trial may be scheduled
between the judge and all other parties
The same judge and same family consultant deals with the matter throughout the trial
Most of the evidence will come from each of the parents.
Judge concentrates on getting the best information from everyone about the specific
needs of the child(ren)
The judge will consider the evidence and may discuss it with the parents or witnesses
Meetings with the judge may be by telephone conferences
LEGAL AID CONFERENCES




Family dispute resolution conference, part of process of applying for legal aid
Chaired by lawyer or social worker or both
Mediation/conciliation/early neutral evaluation (Altobelli)
Chairperson makes recommendation at end as to further legal aid
ARBITRATION



Both parties must consent (s 13E FLA); award must be registered to be binding (s 13H)
Advantages: Cost, time (long waiting lists in court), private, choice of arbitrator, binding
Setting aside award: award can be reviewed / set aside (s 13J/K); set aside if fraud,
non-disclosure, impracticable, arbitrator bias or lack of procedural fairness.
Page 30
Family lawyer…
What does a family
lawyer need to
know?
Knowledge
Legislation: federal and
state
Case law
Court/tribunal procedure
Codes of
conduct/obligations
Social science research
Where to make
appropriate referrals
Skills
Communication:
Verbal and non-verbal
Legal interviewing
Drafting & Advocacy
Negotiation
Representing clients in
mediation/conciliation
Attitudes
Ethical framework
Client focus
Settlement focus
Empathic
Inclusive perspective:
appreciating cultural
/gender
issues/ family violence
Family mediator…
a university for the
What does a family
real worldmediator need to
know?
R
Knowledge
Legislation: federal and
state
Case law
Court procedure re s60I
Codes of
conduct/obligations
Social science research
Where to make
appropriate referrals
Skills
Communication:
Verbal and non-verbal
Interviewing
Negotiation
Mediation
CRICOS No. 00213J
Attitudes
Ethical framework
Client focus
Settlement focus
Empathic
Inclusive perspective:
appreciating cultural
/gender
issues/ family violence
The family real
dispute resolution system
a university for the
R
CRICOS No. 00213J
world
Family law DR
system
Commonwealth
courts
a university for the
State Courts
real world
Tribunals
Dispute
resolution
outside
of court
Agencies for
referral
Child
Support
Agency
Centrelink
Contact
Centres
Domestic
Violence
support
Counselling
and support
R
CRICOS No. 00213J
Page 31
Page 32
L11: DIAGNOSING DISPUTES
SELECTING A PROCESS

The lawyer’s role is to understand the DR spectrum and to make appropriate choices
for their clients across that spectrum that are appropriate to the dispute type, nature of
the clients etc.
General factors (integrated with Astor & Chinkin factors):
An analysis of a dispute generally involves looking at the following general factors:


Defining the problem:
 What is the subject matter of the dispute? / Nature of the dispute (A&C)

What is the factual and legal complexity of the dispute? (Astor & Chinkin)

What is the monetary value (if any) of the subject of the dispute? (A&C)

What are the key issues between the parties?
Who are the participants:
 Who are the parties to the dispute? – Any power imbalances?
 Are there any third parties who are not directly involved but may have an interest
in or impact on the outcome?
 What are the communication skills of the parties?
 What are their individual needs and interests?
-

The relevant context and past:
 What is the factual context—that is, the history of the dispute, the current
circumstances?

How many parties are there (Astor & Chinkin)

What is the context in terms of the parties and their connection with each other?
- What is their relationship? Are there power imbalances? (Astor & Chinkin)
-

Positions are relevant to known, but need to know interests, can identify by
asking “why?”
Do the parties have a continuing relationship? (Astor & Chinkin)
Possible options for resolution:
 What are the objectives of the parties? (Astor & Chinkin)
 What sorts of options are the parties looking at achieving?
 Do they want a range of remedies and options to be open to them?
 Is there a need for privacy? (Astor & Chinkin)
 What resources are available for the resolution of the dispute? (Astor & Chinkin)
 What time factors apply to the dispute—is there a need for a speedy
determination or is there some flexibility about time frames? (Astor & Chinkin)
 Do they want an enforceable decision? – Will need a more formal process
- Need for authoritative ruling with precedential effect? (Astor & Chinkin)
 Would they be able to adhere to a negotiated outcome?
 What is the ability of the parties to negotiate without third party assistance? (A&C)
Page 33
A MATRIX FOR ASSESSING THE SUITABILITY OF PROCESSES FOR DISPUTES
(Facilitative)
Mediation
Note: consider
these factors
re: negotiation
as well, just
won’t have
facilitator
Conciliation
When parties:
 Want to have some type of continuing relationship
 Want control over dispute resolution process and agreement at end
 Are concerned to minimise costs and delay
 Want the dispute resolved confidentially
 Need a tailor-made resolution which addresses many issues and needs, for
example, contact arrangements for children
 Have a genuine desire to resolve the dispute without commencing or continuing
litigation.







Such a level of conflict that parties require more directive facilitator
Where one party is being unrealistic about the outcome they will achieve if the
case proceeds to a final court hearing
Concern about costs & delay to proceed to final court hearing (want to save
money and time)
Want dispute resolved within court/tribunal or commission process
Need a tailor-made resolution which addresses many issues
One or both parties may have a genuine desire to resolve the dispute without
proceeding to final hearing however conflict too high to achieve this by mediation.
Usually court ordered
Expert
appraisal /
determination
(non-binding)

Expert
determination
(binding)
Note: needing
binding
agreement

Arbitration
When parties:
 Wish to reduce delays & formalities associated with court procedures
 Require some degree of privacy (eg. Taxation issues)
 May require adjudicator to have technical expertise
 Wish to limit the hearing to two parties; and/or
 Are located in different countries.
Note: wanting
to avoid court
but still need
formal decision
making
Litigation
Note:
Urgent
disputes








Issues can only

be resolved by
court – need

for particular
finding of fact

Dispute involves issues of fact, quantification or valuation rather than legal
liability
when parties have a good relationship which they wish to preserve
Expert’s opinion is likely to assist the parties to reach a settlement.
Dispute involves issues of fact, quantification or valuation rather than legal
liability
Parties want binding decision but wish to avoid disadvantages of arbitration and
litigation
The parties’ relationship is such that formal enforcement through the courts will
likely not be necessary.
Circumstances of urgency, party may lose entitlement if matter not taken to court
Case inappropriate for dispute resolution, eg, concerns allegations of fraud or an
illegal act, or issue that can only be resolved by court decision
One or both parties does not genuinely want to resolve the dispute
Parties want a public forum
Parties’ legal representatives are not skilled at non-adversarial justice they make
seek litigation as feel comfortable with the process  owe duty to be skilled!
There is an overwhelming power imbalance which is such that a dispute
resolution process cannot be successfully utilised
May be used inappropriately where one party can afford the litigation process
and is using it as “payback” to punish the other party in the dispute
Page 34
WHEN IS MEDIATION NOT APPROPRIATE

When parties don’t have the capacity to negotiate on their own behalf effectively

Where power balance is severe (and no protection from lawyer etc)

Where self-determination is not achievable (that is the key element of mediation)

Where informed consent isn’t possible (ie. no access to legal advice / feel pressured to
make a decision)
 Informed consent needs to be real for self-determination to be achieved
Note: if choosing mediation – see Rundle article for roles lawyers can take on in mediation
Lawyer’s adversarial vs non-adversarial role:

Non-adversarial:
 Importance of getting to interests of parties, beyond positions
 About pursuing client’s interest, ensuring that they are effectively represented to
achieve the outcome THEY want
 Important to have knowledge and skills of when distributive or adversarial
approaches in mediation / negotiation may be required

Adversarial:
 About being persuasive, about evidence
DRAFTING DR CLAUSES

Must not oust jurisdiction of court (Scott v Avery)

Must be certain (Elizabeth Bay)

Must not refer to “good faith” participation – best not to include good faith requirement
(David Spencer Article)
MOST COMMON MISTAKES BY LAWYER REPRESENTATIVES
Wade:





Failure to prepare the ‘right’ information
Overconfident prediction of court outcomes
Overemphasis on ‘legal’ issues as compared to ‘commercial’ or personal issues
Emotional and antagonistic involvement of lawyers
‘Entrapment’ - investing too much time and money into the conflict
THE 5 HUMBLE HYPOTHESIS
Good for a lawyer to have in mind when going into DR process:

What goals does each client have?
 This is the reverse of ‘what risks does each client have if the conflict continues’?

What are the causes of this conflict?

What interventions might be helpful?

What bumps/glitches are predictable?

What substantive outcomes are possible / probable?
Page 35
7 PRINCIPLES FOR ADVISING
Vickery: 7 principles for successfully advising a party at mediation:







Be familiar with the process
Be prepared
Be flexible
Be client responsive
Be frank (but diplomatic)
Be patient
Be alert
L12: ETHICS
KEY ISSUES IN NON-ADVERSARIAL PRACTICE


Confidentiality and privilege:

Generally claimed that DR processes are confidential

Confidentiality is complex and cannot be absolute (Astor & Chinkin)

Statutory assurances of confidentiality are one of the strongest forms of protection
(eg. S 131 QEA: docs prepared in attempt to negotiate are confidential)

Contractual assurances of confidentiality (eg. In agreements to mediate) have yet
to be fully considered by Aus courts

Common law privilege: BUT courts fact difficult balancing act – the assurance of
confidentiality vs ensuring that courts have the best evidence before them
Liability and immunity:

Mediator liability has been considered in relation to:
-

Torts: difficult to establish standard of care; difficult to establish causative
link between damage suffered and breach (especially in facilitative
mediation)
Enforceability of settlement contracts / DR clauses
ADR MOVEMENT – UNREGULATED

Can lead to uncertainty for clients about what to do if practitiooner is not competent /
breaches an ethical or legal duty

Ethics are currently dealt with by standards and codes of conduct (eg. Law Council of
Australia)

Now statutory-regulated mediators vs voluntary individual ones (something to
advise client of re: mediation)
Page 36