CORE Metadata, citation and similar papers at core.ac.uk Provided by Institutional Knowledge at Singapore Management University Singapore Management University Institutional Knowledge at Singapore Management University Research Collection School Of Law School of Law 7-2001 What's law got to do with it: Mapping modern mediation movements in civil and common law jurisdictions Nadja ALEXANDER Singapore Management University, [email protected] Follow this and additional works at: https://ink.library.smu.edu.sg/sol_research Part of the Dispute Resolution and Arbitration Commons, and the Jurisdiction Commons Citation ALEXANDER, Nadja. What's law got to do with it: Mapping modern mediation movements in civil and common law jurisdictions. (2001). Bond Law Review. 13, (2), 1-29. Research Collection School Of Law. Available at: https://ink.library.smu.edu.sg/sol_research/1881 This Journal Article is brought to you for free and open access by the School of Law at Institutional Knowledge at Singapore Management University. It has been accepted for inclusion in Research Collection School Of Law by an authorized administrator of Institutional Knowledge at Singapore Management University. For more information, please email [email protected]. WHAT’S LAW GOT TO DO WITH IT? MAPPING MODERN MEDIATION MOVEMENTS IN CIVIL AND COMMON LAW JURISDICTIONS By Nadja Alexander * Mediation: A Flexible Process in a Procrustean Bed? In Australia we call it ‘Mediation’, the French say ‘la mediation’, and t he Germans ‘die Mediation’. The term is global, stemming from the Latin, mediatio; 1 the process universal, its inherent flexibility transcending historical and national legal norms and systemic differences. Indeed, forms of mediation can be traced back to sources in ancient Greece, 2 the Bible, 3 traditional communities in Asia and Africa, 4 and to the fourteenth Century English ‘Mediators of Questions’. 5 Mediation, however, does not exist in a vacuum. It operates against a backdrop of national dispute manag ement culture and institutional rules and regulations. Accordingly, it is nothing less than misleading to consider mediation as a universal process in isolation from its context. Context determines how mediation is absorbed and applied by mediators, disput e management professionals such as lawyers and clients. Context defines mediation and has a direct impact on how it is practised. National legal contexts reveal historically embedded systemic differences that can * Associate Professor of Law, University of Queensland. 1 A Kemmann and M Gante -Walter, ‘Zur Begriffsgeschichte der Mediation’ (2001) 6 ZKM 273 -4. 2 Ibid. 3 See Matthäus 5:9 -1. Timotheus 2:5 -6; Korinther 6:1 -4. 4 On the earlier forms of consensus -based dispute resolution, or mediation in traditional communities such as the Nuer in Sudan and the Ndendeuli in Tansania, see A Holtwick - Mainzer, Der übermächtige Dritte: Eine rechtsvergleichende Untersuchung über den streitschlichtenden und streitentscheidenden Dritten (1985) 40; P Gulliver, ‘Dispute Settlement Without Courts: Th e Ndendeuli of Southern Tanzania’ in L Nader (ed) Law in Culture and Society (1969) 24. On the application of mediation in China and the Asian region, see D Bagshaw, ‘ China: Mediation in Divorce is an All -In Affair Now’ (1995) 2 Australian Lawyer 24; H Ga llagher, ‘ The Eastern Approach’ (1995) 69 Law Institute Journal 64; T Krapp, ‘Zivilrechtliche Schlichtung an japanischen Gerichten’ in W Gottwald and D Strempel (eds), Streitschlichtung: Rechtsvergleichende Beiträge zur au er -gerichtlichen Streitbeilegung (1995) 77. 5 P Dwight, ‘Commercial Dispute Resolution in Australia: Some Trends and Misconceptions’ (1989) 1 Bond Law Review 1. provide insights into the reasons behind th e rapid expansion of mediation in common law jurisdictions, and the comparatively hesitant development of mediation in civil law jurisdictions. In this article I consider the legal and political forces behind the modern mediation movements in Australia an d Germany: two countries that represent the common law and the civil law traditions respectively. The Common Law Context: Australia The modern mediation movement began in the 1970s in the United States, and while the curious reader might be forgiven for thinking that the United States may have provided a better comparative subject from the common law perspective, this article focuses on Australia for the following three reasons. First, Australia’s role as a global leader in ADR developments has been rec ognised on an international level. 6 Court -related ADR exists in every court and tribunal in Australia; 7 community mediation and private mediation exist in all Australian jurisdictions. In other words, mediation has been applied in practice to all types of disputes. Such a broad spectrum of practice can provide invaluable comparative insights for an evolving global context. Second, much has already been written about the US experience, often to the exclusion of other jurisdictions with valuable, different and cutting -edge comparative experiences, such as Australia. 8 Different insights can be gained from a comparison with the Australian experience. One significant example is the development of the discussion on national standards for mediation. While the Uni ted States has moved closer towards national standards through the Model Uniform Mediation Act, 9 Australia’s National ADR Advisory Council (NADRAC) recently recommended against the development of one set of national mediation standards on the basis that su ch a development would threaten innovation and diversity in the practice of what is essentially a flexible process. 10 6 Australia, NADRAC, A Framework for ADR Standards, Report to the Commonwealth Attorney -Gen eral (2001) 47. 7 T Sourdin, Key Issues in Alternative Dispute Resolution (2001) 12. 8 W Gottwald, ‘Mediation in den USA – ein Wegweiser’ in M Henssler and Ludwig Koch (eds), Mediation in der Anwaltspraxis (2000) 221 -222. Gottwald points to the ironic fa ct that Asian and African countries today ‘import’ American ADR models, although traditional consensus -based dispute resolution processes from these same Asian and African countries served as models for the development of ADR in the United States. 9 See t he Program on Negotiation (PON) at Harvard Law School website [Internet - http://www.pon.harvard.edu/guests/uma/main.htm (Accessed 7 February 2002)]. 10 NADRAC, above n 6, 10. 2 Finally, mediation in the Australian legal system has developed, albeit not as the result of a regulatory government approach, in a much m ore homogenous manner than in the United States. It is much more difficult to speak of the ‘American experience’ in mediation, because there are so many vastly different dispute resolution cultures. While the Australian mediation movement can be characteri sed by its high level of innovation and experimentation resulting in an equally high level of diversity, a correspondingly low level of state based regulation has permitted a ‘similar’ diversity in mediation policy and practice to develop in all Australian jurisdictions. Accordingly, one can speak of the Australian experience in a more holistic way than the American. Therefore, a national cultural context such as the Australian is extremely useful as a basis for international comparative study. The Civil L aw Context: Germany The German legal system provides a useful example of the civil law tradition for the following reasons. German mediation developments, like those in other civil law jurisdictions, began to take shape in the 1990s. While each country’s mediation movement has developed differently, there are significant similarities between civil law countries and Germany provides a useful case study. Insofar as the European Union has introduced directives relating to mediation, German ADR regulations in corporate these. Germany is situated in central Europe and is surrounded by civil law traditions of other European countries. In terms of terminology, German is officially spoken in five European countries and principalities: Germany, Austria, Switzerlan d, Luxembourg and Lichtenstein. Accordingly, some degree of terminological consistency can be achieved for comparative purposes among these countries, as it can among English speaking common law countries such as Australia, New Zealand, the United States, Great Britain and Canada. Six Theses While the focus of this article is only on two countries, it is my contention that this comparative case study is a useful reflection on the significant differences existing in the development of mediation in common a nd civil law jurisdictions generally. At the very least, this case study will serve as a valuable starting point for further research in comparative mediation. I propose six theses for the current differences in mediation practice in Australia and Germany: 1. The German legal culture, steeped in the civil law tradition, restrains the development and acceptance of mediation (the civil law cultural tradition). 3 2. The highly regulated German legal profession has discouraged lawyers from embracing mediation as an alternative to litigation (the regulation of the legal profession). 3. The time and cost efficiency of the German legal system means that the promise of time and cost savings will not motivate stakeholders (the efficiency of the German legal system). 4. The ab sence of uniform terminology has led to confusion about the meaning of mediation in Germany (the language of mediation). 5. The settlement function inherent in the judicial role in