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. 212 (2014) 25 ADRJ 212 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