Insights from Australian Mediators About Mediation and Access to Justice

Insights from Australian mediators about mediation and access to justice Mary Anne Noone and Dr Lola Akin Ojelabi* This article details a recent research project in which 21 experienced mediators were interviewed about access to justice in mediation within the civil justice system. Interviewees were presented with hypothetical mediation scenarios, and were asked to identify potential practical and ethical problems in relation to procedural fairness, and parties’ ability to access information and advice. The interviews revealed that a thorough intake process, and ensuring all parties have good access to legal advice and information, are crucial to ensuring a fair mediation process.

INTRODUCTION A critical claim of the integration of mediation into the civil justice system is to enhance access to justice. However, the connection between the institutionalisation of mediation and improved access to justice remains unproven, particularly when access to justice is conceived as including increased opportunity to gain entry into the justice system and obtaining fair outcomes.1 In a recent research project, the authors interviewed 21 experienced and expert mediators to harness their wisdom and views on issues of mediation and justice. Five hypothetical scenarios were presented to the mediators and their reactions to potential practical and ethical issues that raised concerns about justice in mediations were sought. The mediators’ responses indicated that, despite a common set of standards and the agreed critical value of self-determination in mediation, mediators have varying moral compasses which lead to a variety of responses. However, interviewees agreed a proper intake process plays a critical role in ensuring procedural fairness in mediation, as well as the parties’ ability to access legal advice and information. For most participants, ensuring procedural justice will ultimately guarantee outcomes that are just. Most interviewees stated they would have avoided the speciﬁc challenges raised in the scenarios by conducting a thorough intake process. In this article, it is argued that if mediation is to improve access to justice, it must at least have proper intake processes and parties must be able to access legal advice and information. Consequently, the resource and practical implications of mandating mediation in the civil justice system must be heeded. The focus here is on mediation in the civil justice system (excluding family law).2 The article will detail the context to the research; outline the research methodology; and discuss the intake process and the concept of legal advice and informed decision-making in the mediation process. Also brieﬂy discussed is the legal assistance available in civil law areas. The authors observed that participants in private practice generally have a more robust intake process than public sector organisations; however, the Department of Justice, Dispute Settlement Centre (DSCV) has a very detailed intake process. As such, the authors conclude that if mediation is to increase access to justice for parties within the civil justice system, the government needs to ensure resources are available for providers of dispute resolution to design and administer a proper intake process, provide access to legal advice, and ensure the principle of informed decision-making permeates mediation processes.

* School of Law, La Trobe University. Thanks to the Legal Services Board (Victoria) for funding this research, special thanks to the authors’ committed and thorough research assistant, Ms Lynn Buchanan, and the research participants and advisory group. 1 This article adopts the former National Alternative Dispute Resolution Advisory Council’s (NADRAC) deﬁnition of mediation: a process where the participants, with the assistance of an independent person as mediator, identify the disputed issues, develop options, consider alternatives and endeavor to reach an agreement. The mediator is usually regarded as having a facilitative role and will not provide advice on the matters in dispute. See Attorney-General’s Department, Alternative Dispute Resolution, pp 15-16, http://www.ag.gov.au/LegalSystem/AlternateDisputeResolution/Pages/default.aspx. 2 In family law disputes, primary dispute resolution (mediation) is provided by range of legal assistance and family relationship organisations.

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Electronic copy available at: http://ssrn.com/abstract=2808868 Insights from Australian mediators about mediation and access to justice

CONTEXT OF RESEARCH In the 1960s and 1970s, the impetus to improve access to justice came from a realisation by many in the legal arena that the liberal claim of a justice system that ensured “equality before the law” was a mere formal right with little substance or practical effect.3 Cappelletti and Garth surveyed access to justice developments across many western industrialised countries and identified three waves in the access to justice movement. The first addressed economic matters and sought to provide citizens with legal means to seek justice through legal aid schemes.4 The second wave focused on organisational matters that facilitated standing in a representative capacity and class actions. The third wave was procedural and includes the development of a range of alternative dispute resolution (ADR) processes.5 Since then, many nations have identified and attempted reforms to their civil justice systems.6 Problems identified in the operation of civil justice systems include high costs, delay, uncertainty, fragmentation, and the adversarial nature of litigation. An aspect of the access to justice movement was the establishment of dispute resolution institutions such as ombudsmen services, specialist tribunals, and community/neighbourhood justice centres.7 In the Australian context, in 1994, the Access to Justice Advisory Committee recommended resorting to ADR and continued development of ADR programs as one solution to improving access to justice.8 The Committee identified the advantages of ADR to include provision of broader remedies, and cheaper and less formal processes.9 In the two decades since that report, ADR processes, including mediation, have become an accepted part of the civil justice system in Australia and legislation reinforces this approach to ADR. The object of the Civil Dispute Resolution Act 2011 (Cth) is to ensure that people take genuine steps to resolve disputes before instituting civil proceedings. Similarly, the purpose of the Civil Procedure Act 2010 (Vic), under s 7(1), is to “facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute”. This policy and legislative reform is couched in aspirations to improve access to justice. In addition to the private practice of mediation, the process is now being used in relation to family disputes, consumer and credit finance matters, tenancy, and majority of small claims before courts and tribunals at all levels. Courts and tribunals may require parties to use ADR processes as a result of a court order or as a condition to accessing the courts. Court-annexed dispute resolution schemes form a significant part of the dispute resolution landscape. ADR occurs within the civil justice system with a focus (at the federal level) on accessibility, appropriateness, equity, efficiency and effectiveness with the overall aim of maintaining and supporting the rule of law. Most recently, the Australian Productivity Commission’s Draft Report on Access to Justice

3 Cappelletti M and Garth B, “Access to Justice: the World-Wide Movement to Make Rights Effective” in Cappelletti M and Garth B (eds), Access to Justice: a World Survey (Sitjhoff & Noordhoff, 1978) p 5. 4 For a discussion of the Australian legal aid system from the 1970s to date see Noone MA and Tomsen S, Lawyers in Conflict: Australian Legal Aid and the Legal Profession (Federation Press, 2006). 5 Cappelletti and Garth, n 3. See also Cappelletti M, “Alternative Dispute Resolution Processes within the Framework of the World-Wide Access-to-Justice Movement” (1993) 56 The Modern Law Review 282; Howells G and James R, “Litigation in the Consumer Interest” (2002) 9(1) ILSA Journal of International and Comparative Law 1 at 3-4; More recently, Parker identified a fourth wave, competition policy reform of legal service provision: Parker C, Just Lawyers (OUP, 1999) p 32. 6 Most notable of these is the reforms in the United Kingdom initiated by Lord Woolf. See Lord Woolf, Final Report: Access to Justice (HMSO, 1996). In the United Kingdom, expansion of ADR processes (including increased community education about ADR and providing legal aid funding) was identified as a large part of the solution to the problems of the civil justice system. Reforms to the civil justice systems in Australia have followed similar paths, attempting to improve accessibility, affordability, proportionality, timelines and the ability to get to the truth quickly and easily. For a critical assessment of these reforms see Genn H, “What is Civil Justice For? Reform, ADR, and Access to Justice” (2012) 24 Yale Journal of Law and the Humanities 397. 7 Law Reform Committee, Parliament of Victoria, Inquiry into Alternative Dispute Resolution and Restorative Justice (2009) p 19. 8 Access to Justice Advisory Committee, Access to Justice: An Action Plan (1994) pp 279, 300. 9 Access to Justice Advisory Committee, n 8, p 278. In particular, “ADR can make a very positive contribution to access to justice because it offers, in its various forms, an inexpensive, informal and speedy means of resolving disputes … the outcomes are those which the parties themselves have decided and are not imposed on them”.

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Electronic copy available at: http://ssrn.com/abstract=2808868 Noone and Ojelabi Arrangements also endorsed further development of ADR processes within the civil justice system: Court and tribunal processes should continue to be reformed to facilitate the use of alternative dispute resolution in all appropriate cases in a way that seeks to encourage a match between the dispute and the form of alternative dispute resolution best suited to the needs of that dispute. These reforms should draw from evidence–based evaluations, where possible.10 The Commission, however, stated that while ADR has proved effective in some circumstances, it is not an appropriate mechanism for resolving all disputes and its use must be accompanied by safeguards that allow for litigation if settlement cannot be reached.11 To contextualise the increased use and endorsement of ADR processes, the Productivity Commission noted that civil disputes are relatively common. Furthermore, the Law Australia Wide survey of legal need, undertaken by the Law and Justice Foundation in 2008, found close to half of respondents experienced one or more civil legal problems (including family law matters) over a 12-month period. The most prevalent problems related to consumer matters, housing and dealings with government. By comparison, around 15% of respondents experienced a criminal problem.12 International and Australian research has found consistently that disadvantaged members of the community experience more barriers to access to justice than others.13 With the increase in civil disputes, it becomes imperative for the government to provide alternative avenues for resolution thus increasing access to justice for members of the community and, in particular, those experiencing disadvantage. Although a stated aim for the increase in the use and institutionalisation of ADR is to address systemic issues within the civil justice system, including issues relating to access, the connection between increasing ADR processes and improved access to justice has been the subject of debate. Practitioners, proponents and critics of mediation in Australia are concerned about the justice of mediated outcomes. Some of the debate is around the increased access to justice for disadvantaged members of the community including women, those with poor language skills and those with diminished capacity to participate effectively in the process, particularly mediation.14 Research conducted on the views of Community Legal Centres (CLCs) about ADR as a means of improving access to justice revealed that CLC staff are concerned about the fairness of the mediation process and outcomes when disadvantaged parties, who form a core of their clientele, and have to use mediation as a mandatory dispute resolution process – sometimes without legal representation. The CLC staff voiced concern about how the goals of saving costs and managing the courts’ lists may mean that their clients are being directed to ADR processes that have the potential for unfair outcomes, deﬁned as outcomes which ignore their clients’ legal rights. To ensure that their clients have access to justice in ADR processes, CLC staff emphasised the importance of ensuring mediation parties are aware of their rights prior to commencement of the process.15 These concerns arise from the acclaimed values of mediation: the principle of party autonomy or self-determination and the ability of the mediator to address power imbalance; the principle of neutrality and the appropriateness of the mediator raising concerns about the justness of outcomes; and

10 Productivity Commission, Access to Justice Arrangements, Draft Report (2014), Draft Recommendation 8.1. 11 Productivity Commission, n 10, p 5. 12 Coumarelos C, Macourt D, People J, McDonald HM, Wei Z, Iriana R and Ramsey S, Legal Australia-Wide Survey: Legal Need in Australia Law (Law and Justice Foundation, 2012). 13 Coumarelos et al, n 12, pp 5-6, 16; Pleasence P, Causes of Action: Civil Law and Social Justice (2nd ed, Legal Services Research Centre, 2006) p 4; Buck A, Balmer N and Pleasence P, “Social Exclusion and Civil Law: Experience of Civil Justice Problems among Vulnerable Groups” (2005) 39 (3) Social Policy and Administration 302. 14 For an overview of the debate, see Akin Ojelabi L “Mediation and Justice: An Australian Perspective Using Rawls Categories of Procedural Justice” (2012) 31(3) Civil Justice Quarterly 318 at 320; Noone MA, “ADR, Public Interest and Access to Justice” (2011) 37(1) Monash University Law Review 57; Akin Ojelabi L and Noone MA, “Ensuring Access to Justice in Mediation within the Civil Justice System” (2014) 42(2) Monash University Law Review (forthcoming). 15 Akin Ojelabi L, “Community Legal Centres’ Views on ADR as a Means of Improving Access to Justice – Part I” (2011) 22 ADRJ 111 at 113-115.

214 (2014) 25 ADRJ 212 Insights from Australian mediators about mediation and access to justice the provision of relevant information and/or advice to the parties. Other commentators have raised concerns over the use of mandatory mediation especially for unrepresented litigants. Issues include whether unrepresented litigants can make an informed choice about agreements proposed; and whether pressure is exerted on parties in a mediation process to settle. There are, in addition, issues relating to the extent to which the level of knowledge about the subject matter of the dispute, and whether the legal rights of the parties may affect the quality of justice of the outcome.16 Where the mediator actively promotes settlement without regard to, or inconsistently with, the legal rights of the parties, the outcome of the mediation may be unjust. It is widely accepted that one of mediation’s goals is promotion of fairness, and mediators generally agree that they are responsible for ensuring procedural fairness. They have a clear duty to the parties to provide a process where all parties are treated with respect and dignity, and given the opportunity to make their views known and potentially reach an agreement without coercion. As stated, there is disagreement within the field of mediation on this issue. Hyman &and Love argue that “justice seeking” is a central component of mediation and the role of the mediator is to enhance justice and avoid injustice, while honouring the primacy of the parties making their own decisions. On the other hand, Bogdanoski argues that the mediator should do more to enhance party self-determination: By failing to intervene on behalf of a party who is being disadvantaged by the mediation process, it can be said that the mediator participates in an unjust and exploitative process as the mediator fails to promote that party’s self-determination.17 Some commentators propose parties cannot exercise self-determination if they are uninformed about their legal rights. Nolan-Haley raises this in connection with unrepresented parties in court-connected mediations and points out that, in practice, it may be difficult for them to get legal advice. She argues that the outcomes of those mediations should be measured by legal standards because parties are entitled to expect “equivalency justice”, which she maintains has both procedural and substantive components.18 Similarly, Maute contends mediators should refuse to finalise an agreement where it “is so unfair that it would be a miscarriage of justice, or where the mediator believes it would not receive court approval”.19 The responses to these sorts of criticisms often focus on the extent to which mediators should intervene to ensure a fair settlement. Some of the responses suggested by research participants are: more emphasis on intake and screening in recognition that some disputes are not suitable for mediation; rethinking how neutrality works in practice; and the expansion of ethical standards to incorporate some accountability for fair outcomes. There is no such thing as a level playing field, and as a result, mediators always have an impact, which is not neutral, on the process and the outcome … The challenge is to be conscious, transparent, strategic, and wise in using our power to promote an ethical and constructive conflict engagement process.20 GOALS, METHODOLOGY AND INTERVIEWEES The foregoing indicates a range of the issues pertinent to an exploration of the connection between mediation and access to justice. With an increased use of mandatory mediation in the civil justice

16 Delgado R, Dunn C, Brown P, Lee H and Hubbert D, “Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution” (1985) Wisconsin Law Review 1359; Gunning I, “Know Justice Know Peace: Further Reﬂections on Justice, Equality and Impartiality in Settlement Oriented and Transformative Mediations” (2004) 5 Cardozo Journal of Conﬂict Resolution 87; Gunning I, “Diversity Issues in Mediation: Controlling Negative Cultural Myths” (1995) Journal of Dispute Resolution 55. 17 Bogdanoski T, “The ‘Neutral’ Mediator’s Perennial Dilemma: To Intervene or Not to Intervene?” (2009) 9(1) Queensland University of Technology Law and Justice Journal 38. 18 Nolan-Haley JM, “Court Mediation and the Search for Justice Through Law” (1996) 74 Washington University Law Quarterly 47 at 51. 19 Maute JL, “Mediator Accountability: Responding to Fairness Concerns” (1990) Journal of Dispute Resolution 347 at 348. 20 Mayer B, “What We Talk about When We Talk about Neutrality: A Commentary on the Susskind/Stulberg Debate” (2012) 95(3) Marquette Law Review 860.

(2014) 25 ADRJ 212 215 Noone and Ojelabi system, the research discussed in this article was motivated to discover how those currently working in the mediation field responded to aspects of mediations that could negatively impact on access to justice. The authors were interested to find out how mediators sought to guard against perpetuating disadvantage in mediation and thus improve access to justice. Despite the development of standards and accreditation processes for Australian mediators, there is little material available that provides practical guidance to mediators about how to ensure justice and ethical issues are addressed in mediations. Waldman addressed this void for North American mediators in her book Mediation Ethics: Cases and Commentaries, where she developed case studies and sought commentary from mediation specialists.21 The authors’ project draws on Waldman’s approach and seeks out the views of Australian mediation practitioners in order to develop contextualised guides to ethical and practical dilemmas. The semi-structured interviews in this research were centred around five hypothetical scenarios22 that raised issues of party awareness of legal rights, confidentiality, cultural sensitivity, conflicts of interest, party capacity, reporting of systemic misbehaviour, and lawyer conduct. The interviewees were asked to identify potential ethical and practical dilemmas contained in the scenarios and to articulate how they would respond. They were asked what strategies and safeguards they would use to satisfy their ethical responsibilities as a mediator, and what factors would make them decide to end the mediation. Twenty-one experts and experienced mediators were interviewed, including practitioners and practising academics, lawyers and non-lawyers. All interviewees are accredited mediators under the National Mediator Accreditation System (NMAS).23 In this article, the authors do not focus on responses to a particular scenario; instead, they draw out the implications of the responses for provision of legal assistance services. In particular, they discuss strategies identified as critical to improving access to justice for parties in mediation: having an intake process and ensuring that parties make informed decisions. OVERVIEW OF RESEARCH FINDINGS Nineteen of the 21 mediators described themselves as facilitative mediators, while two were transformative mediators.24 Among the facilitative mediators, seven said they were flexible in their process, adapting the process to suit the needs of the parties, and bringing in elements of transformative or narrative mediation as needed. In their responses to the scenarios, there were some significant commonalities as well as key differences. All the interviewees were of the view that a proper intake process plays a critical role in mediation. Intake is an opportunity to assess whether the matter is suitable for mediation, as well as assessing whether the parties have particular needs, for example, they may need an advocate or support person. It is also a chance to encourage the parties to obtain information or advice before the mediation, and to discuss who should attend the mediation and various attendees’ roles. Secondly, although party self-determination was seen as an important element of mediation, informed decision-making was considered critical to just outcomes. Parties need to be fully informed in order to participate and make a decision about settlement. This may include receiving legal or financial advice, or even counselling. Furthermore, all interviewees were of the view that the mediator’s role is to help the parties get the best outcome possible. To achieve this, the mediator is to help the parties to fully explore their

21 Waldman E, Mediation Ethics: Cases and Commentaries (Jossey Bass, 2011). 22 Copies of the scenarios are available from the authors. Interviews were semi-structured, and were transcribed and their responses thematically analysed using NVIVO software: see http://www.qsrinternational.com/products_nvivo.aspx. 23 The NMAS is a voluntary industry system under which organisations qualify as Recognised Mediator Accreditation Bodies that may accredit mediators. 24 There are four main models of mediation: facilitative, settlement, transformative, and evaluative. The NMAS endorses a facilitative model. “In facilitative mediation, the mediator conducts the mediation along strict procedural lines in order to deﬁne problems comprehensively, focus on parties’ needs and interests, and attempt to develop creative solutions that the parties can apply to the problem. In transformative mediation, the mediator assists parties to deal with the underlying causes of their conﬂict, with a view to the parties engaging in dialogue and being able to ‘transform’ the way they relate to each other as a basis for resolving the dispute”: Boulle L and Alexander N, Mediation: Skills and Techniques (2nd ed, 2012) p 15.

216 (2014) 25 ADRJ 212 Insights from Australian mediators about mediation and access to justice options and understand the consequences of their decisions. Reality testing,25 or asking questions in private sessions, was the most significant tool used by the mediators in ensuring parties were making an informed decision. It was clear that the sorts of questions the mediators would ask and the degree to which they would “push” particular parties was informed to a certain extent by a sense of fairness, as well as other factors such as whether they had a legal background. Mediators should pay particular attention to significant power imbalances throughout the mediation as this can affect a party’s ability to make an autonomous decision. While there was agreement amongst the interviewees on the need for parties to make informed decisions, and on the fact that the mediator had some responsibilities towards this, there were differences about the extent to which a mediator should intervene and the type of information a mediator should provide to the parties. A minority of mediators was willing to give parties information of a general nature, including publicly available information about other cases or contact information for organisations that may be able to help them. A minority of the mediators felt responsible for the justice of the outcome. However, if mediators believed that the party had fully thought through the consequences of their decision, they were less likely to deviate from the principle of party self-determination and withdraw from or terminate the mediation due to concerns about substantive justice. Similarly, if mediators saw one party as being too vulnerable or the power imbalance too great, leading to an unconscionable agreement, they were more likely to withdraw or terminate the mediation. However, they tended to describe this as being an issue of procedural fairness rather than substantive fairness. The varying responses highlight the competing values in mediation, for example, between party self-determination and fairness, and informed decision-making versus ethical justification for the mediator to provide information to parties for the purpose of improving their capacity to make informed decisions. Mediators’ responses to scenarios were to a large extent dependent on the weight placed on certain values over others, and what strategies they would employ to ensure that mediation improved access to justice for parties. As stated above, mediators were consistent in their view of the intake process as a way of ensuring the justice quality of the mediation. The intake process Generally, the intake process is regarded by mediation service providers as an information gathering and assessment exercise. It was identified by most interviewees as a key factor in quality and, in particular, justice quality, in mediation practice. Objectives of the intake process include determination of appropriateness of the dispute for mediation, assisting parties to prepare, provision of information about roles in mediation, checking whether an exchange of information is required, and settlement of procedural issues. Interviewees were in agreement that disadvantage results in gross power imbalance and that this can limit the ability of a disadvantaged party to use or engage in the mediation process effectively. Several processes are used by mediators to ensure that disadvantages are identified. For example, mediators ask parties a series of questions in the intake process for the purpose of identifying, among other things, any disadvantage or other issue which may necessitate adjustments to the process, provision of information, or a recommendation to the party affected to seek legal advice. Where it is in the power of the mediator or the organisation to do so, referrals are provided or support sought for the parties. Most interviewees stated they would have avoided the specific challenges raised in the scenarios by conducting a thorough intake process. I think the significance and importance really of intake has been overlooked. And I think particularly with a centre like ours, none of these [cases] would have got to mediation in the way that they’re being presented to us in these scenarios. We would have done a lot more work with the parties to ensure that

25 Reality testing involves the mediator putting a series of questions to the parties in order to test the veracity of options generated and usually occurs during private sessions: Sourdin T, Alternative Dispute Resolution (2nd ed, Lawbook Co, 2005) p 239.

(2014) 25 ADRJ 212 217 Noone and Ojelabi they’re coming fully informed and in a position really to make some decisions and to participate on a more equal footing. I think [in] a lot of these scenarios, one of the participants is disadvantaged either through lack of knowledge or through lack of support. That would have come out in the private session I have in the beginning of the mediation, which is even better because then I can say, well, you haven’t had any legal advice. And I can be up front because we do it at DSCV in our intake and assessment, we say before you come to the mediation gather all your info, get some legal advice and then call us back and we’ll have another chat about mediation, and whether it’s the process for you. So the financial counsellor and solicitor can say “I advise you to do this, that was wrong within the law” – I can’t say that, but other people can. Despite the agreed importance of the intake process to ensuring that mediation does not perpetuate disadvantage, intake processes vary considerably between organisations and mediators. In addition, the quality of intake may vary across organisations and/or practitioners and therefore disadvantage may not be uniformly identified or addressed. This can lead to outcomes that are unjust for parties.26 There are no standard criteria on how to conduct intake, although r 3(2) of the National Mediator Practice Standards provides that the “mediator will ensure that the interviewees have been provided with an explanation of the process and have had an opportunity to reach agreement about the way in which the process is to be conducted”. The Standards are not prescriptive in relation to intake, but r 3(3) outlines possible objectives of the intake process. The DSCV has a very detailed intake process for every case, where staff are required to assess the behaviour of parties to determine the balance of power and suitability of mediation.27 Assessment or intake officers are expected to identify issues that may lead to unsuitability of the mediation process or issues that mediators are required to address in mediation. Where required, referral is provided, but the intake officer (who may also be the mediator) is not expected to give advice during the process although some do. In a related study, mediators commented: “At intake you might advise somebody of the existence of social security payments or worker’s compensation but it is not the general part of the mediator’s job” – Principal Mediator. “[T]he key part to addressing disadvantage in mediation is doing an initial assessment and preparing the parties properly for the mediations before you start. I have a feeling many mediations are entered into without proper intake procedure and preparation of the parties. If that is not done you cannot identify it and you cannot address it and you will go into a mediation and find they are either both disadvantaged or one is disadvantaged against the other. In private mediations I always do an intake to establish those things” – Barrister/Mediator28 Informed decision-making In seeking to ensure procedural fairness in mediation, r 9(1) of the Practice Standards provides that the mediator “will support the participants to reach any agreement freely, voluntarily, without undue influence, and on the basis of informed consent”. Rule 3(3)(b) further provides that “[p]articipants who are prepared and who have received relevant advice are in the best position to make an informed decision when attending a mediation”. In addition, r 9(7) says that an underlying principle of mediation is that “competent and informed” parties may reach agreements which deviate from legal standards. In other words, if the parties are competent and informed, they may exercise self-determination and it can be assumed that any agreement reached is in their best interest. The mediator is thus permitted under r 10(1) to provide, with the parties’ consent, information within the limits of his/her competence and qualification. Informed decision-making is thus fundamental to the exercise of self-determination for parties. According to Nolan-Haley, “the absence of informed consent in mediation undermines … commitment to autonomy”.29 She adds:

26 Noone MA and Akin Ojelabi L, Justice Quality and Accountability in Mediation Practice: A Report (La Trobe University, 2013) p 43. 27 Noone and Akin Ojelabi, n 26, p 31. 28 Noone and Akin Ojelabi, n 26, p 32. 29 Nolan-Haley J, “Informed Consent in Mediation: A Guiding Principle for Truly Educated Decision-Making” (1998) 74 Notre Dame L Rev 775 at 777.

218 (2014) 25 ADRJ 212 Insights from Australian mediators about mediation and access to justice Informed consent prepares the way for a party to participate voluntarily and intelligently in the mediation process and to accept its outcome. It serves as a check on the mediator’s power, a way of making sure that the mediator has not used her position of authority to cajole or bamboozle parties into consent. In short, informed consent matters because the potential for coercion, incapacity, and ignorance can impede the consensual underpinnings of the mediation process. Interviewees also viewed informed decision-making as crucial element of self-determination. Parties need to be fully informed in order to participate and make a decision about settlement. This includes having access to legal advice or ﬁnancial advice. I think it’s justice in access to information and options. So I might disagree with the outcome, but I would be comfortable with the outcome as long as I felt that the interviewees came to that outcome with all the information available to them. And not that they came to that decision because they felt that was the only outcome available to them. Under the National Mediation Standards I can’t give advice, and the mediator’s hand must not be seen in any agreement, but I do think it’s absolutely my responsibility to ensure that people have had an opportunity to be informed. In a consumer scenario where one party had received no advice, the interviewees were willing to adjourn the mediation to give him time to get legal advice. They all felt a responsibility to raise the issue with the party and would actively encourage him to go away and get advice. The extent of information they would give a party varied. Some interviewees would give speciﬁc details of agencies he could approach; some would only give him general information about the availability of free legal services and consumer organisations. One interviewee said she would give him information about the legal system, and another said he would be willing to inform him as a general statement that sometimes people who sign contracts can get out of them on the basis of their lack of information and advice before signing. Both drew the distinction between giving this kind of information (objective), and giving advice which is seen as inappropriate. Two other interviewees said they would give advice on negotiating strategy and on process. This distinction between information and advice is often unclear and the responses indicate variability in understanding amongst mediators. The Practice Standards clearly prohibit a mediator who is not using a blended process with the parties’ consent from providing advice. As such, the question arises as to the distinction between information and advice. This raises ethical dilemmas for mediators and some would prefer to refrain from providing any information at all to avoid breaching the Practice Standards. It is clear that whether or not justice quality is ensured depends on a number of factors including robustness of intake processes, the skills, knowledge and experience of the mediator, and the quality of support available to parties in mediation.30 Most mediators would suggest the parties seek legal advice, but this might become an issue for parties with few resources or means to seek such advice. Some mediation providers would refer parties to CLCs to receive free advice but generally ready access to legal information and advice is not available. This is a particular problem within the civil justice system.

LEGAL ASSISTANCE IN CIVIL LAW AND MEDIATION In Legal Aid Commissions (the primary provider of legal assistance in Australia), more than 60% of legal aid approvals in 2012/2013 were for criminal matters. In stark contrast, only 3% of aid granted was for civil matters, and 34% for family matters, including family dispute resolution (FDR) services31. For those with civil law problems, the main source of assistance is CLCs. In 2011/2012, around 60% of clients visited CLCs for civil matters, 33% for family matters, and 8% for criminal matters.32

30 Noone and Akin Ojelabi (2014), n 14. 31 Productivity Commission, n 10, p 585. Discussion of mediation in this article does not include family dispute resolution. For details of the services provided by Victoria Legal Aid in the civil justice system, see the latest Annual Report 2012-2013, http://ar2013.vla.vic.gov.au/civil-justice-services-facts-and-ﬁgures. 32 Productivity Commission, n 10, p 586.

(2014) 25 ADRJ 212 219 Noone and Ojelabi In recent submissions to the Productivity Commission, both National Legal Aid33 and the National Association of Community Legal Centres (NACLC) indicated they are supportive of ADR as a way to avoid or have early resolution of civil disputes where this is appropriate for the people and situation involved. They note it is important the parties to mediation are supported, as necessary, to understand the legal issues involved and the consequences of agreements they make as part of ADR. In the experience of legal assistance providers there is not necessarily equity of access to avenues of civil dispute resolution for many individuals. The capacity of an individual to seek justice through any number of forums will vary, for example, according to their level of literacy, understanding of the English language, age, or level of education.34 Legal assistant providers see mediation as a “safe” option only if a party has access to free legal advice and assistance. The NACLC submission to the Productivity Commission contains examples of injustices occurring because literacy and language barriers were not considered before or during the ADR process or because the process did not cater for the needs of people with disability.35 Legal assistant providers recognise that mediation can promote access to justice on the condition that parties have access to legal assistance before, and sometimes during, the ADR process. They argue: [I]f increased reliance on ADR is to provide better access to justice, State and Commonwealth governments must fund legal aid commissions, specialist Aboriginal and Torres Strait Islander legal services and community legal centres to provide assistance of this kind. Increasing use of ADR will also increase public demand for other important support services, such as interpreting services and cross-cultural liaison, and these too must be funded adequately. Targeted funding of this kind is the best way to ensure that ADR delivers substantive access to justice for all Australians.36 These views coincide with the interviewees in the authors’ research project who stressed the importance of a good intake process as well as party access to information and advice. CONCLUSION When examining mediation practice, whether access to justice is enhanced for the disadvantaged and justice quality is ensured depends on a number of factors including robustness of intake processes, the skills, knowledge and experience of the mediator, and the quality of support available to parties in mediation. The content and context of the mediation also has a bearing on the assessment of justice.37 If mediation is to be an active agent of improved access to justice, the views of experienced mediators (as detailed in the research) and those in the legal assistance sector (recent submissions) need to be heeded. At a minimum, there must be thorough intake processes and parties must have access to legal advice and information in order to be able to make informed decisions. Quality mediation requires adequate resourcing both for systematic intake processes and readily available legal information and advice from legal assistance providers. The resource and practical implications of mandating mediation in the civil justice system must be addressed, otherwise the barriers faced by the poor and disadvantaged in accessing justice will be perpetuated in the increased use of mediation.

33 National Legal Aid represents the directors of each of the eight State and Territory legal aid commissions in Australia. 34 National Legal Aid, Submission to the Productivity Commission Inquiry into Access to Justice Arrangements (November 2013) pp 25-26. 35 “For example, CLCs in New South Wales have had instances where they have had to step in to assist parents in child protection matters who have signed up to legally binding agreements that they cannot possibly meet, because they were not provided with free legal advice prior to participating in ADR mechanisms”: NACLC, Early Intervention Measures and Alternative Dispute Resolution Submission to the Productivity Commission (November 2013) p 7. 36 NACLC, n 35, p 13. 37 Noone and Akin Ojelabi (2014), n 14.

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