ADR — ARGUMENT FOR AND AGAINST USE OF THE MEDIATION PROCESS PARTICULARLY IN FAMILY AND NEIGHBOURHOOD DISPUTES by Gay R. Clarke* and Iyla T. Davies** 1. INTRODUCTION In Australia today, there is an enthusiastic movement towards alternative dispute resolution (ADR). For the uninitiated that means methods of dispute resolution used as alternatives to court adjudication. These processes are available in Australia both as court annexed programmes eg., the Family Court compulsory conferences and also in the private arena eg., the Australian Commercial Dispute Centre (ACDC) markets its schemes throughout Australia1. Alternative dispute resolution processes include negotiation, conciliation, mediation, mini-trials and arbitration. This paper, however, will focus on mediation and the advantages and disadvantages of its use, particularly in the fields of family and neighbourhood disputes because it is arguable that both in Australia and overseas, especially in the United States, mediation in these two areas is the most highly developed and has received the most academic study. In Australia eg., community justice uses mediation almost entirely2. 2. MEDIATION — A DEFINITION Even though it has been said that the objective of mediation is no more than to achieve resolution of a precisely defined dispute, it is nevertheless not an easy task to define the term although many attempts have been made. A more specific definition and one frequently quoted is that of the American writers Folberg and Taylor, namely: "a process by which the participants, together with the assistance of a neutral third person or persons, systematically isolate dispute issues, in order to develop options, consider alternatives and reach consensual settlements that will accommodate their needs. Mediation is a process which emphasises the participants' own responsibilities for making decisions that effect their lives"3 In Queensland, the Community Justice Programme recently set up by the Attorney- General's Department to cater to community level private disputes, explains the process of * mediation as practised by them in the following terms: * BA(Qld), LLB(Hons)QUT, LLM(Qld)(Senior Lecturer in Law,QUT). ** LLB(Hons)QUT, LLM(Qld)(Lecturer in Law,QUT). 1. In Queensland ADR schemes (including mediation) are presently available outside the court system through LEADR (Lawyers Engaged in Alternative Dispute Resolution) and BAQ Pty Ltd (the Bar Association Mediation Service). 2. In Queensland the Attorney-General's Department has set up the Community Justice Programme. 3. Family Law Council Discussion Paper Family Mediation, 1990 at 6. 82 QLD. UNIVERSITY OF TECHNOLOGY LAW JOURNAL "Mediators do not take sides, decide who is right or wrong, or tell people what to do. A satisfactory result is achieved through mutual agreement." Dr Christopher Moore defines the process as follows: "Mediation is essentially negotiation that includes a third party who is knowledgable in effective negotiation procedures, and can help people in conflict to co-ordinate their activities and be more effective in their bargaining"4. It is desirable at this stage to isolate and highlight some of the individual elements of mediation, as the research shows it is often these peculiarities of the process which lead to the advantages and disadvantages of its application in practice. (a) Entry into the process is voluntary for all parties in dispute. Although the writers have seen the term "compulsory mediation" used in research papers it is submitted that this is not true mediation and should not be categorised as such. One argument put forward is that there should be a distinction drawn between coercion into, and coercion in mediation; that a bit of a shove into the mediation process is not too serious given the general ignorance of that process, as long as the disputants reach their own outcome5. It has been said that this intake coercion is a rather sad conclusion but one we may have to live with for the moment6. The writers disagree with this philosophy. Community education will eventually cure the ignorance of the process problem. It is suggested that if so called 'mediation' is compulsory or coerced then a more appropriate title for the process is conciliation. The difference between these two processes, particularly in their application to family law disputes will be discussed later in this paper. (b) The mediator controls the process, but the disputants themselves control the content and the outcome. A mediator has no authoritative decision-making power.7 (c) The mediator must be impartial and neutral. (d) If either or both parties become dissatisfied with the progress of the mediation then they can terminate the process and simply walk out (indeed the mediator has this right also in certain circumstances). (e) The process is private and the results are confidential and not available for public scrutiny. (f) The agreement reached by the parties themselves is not binding in the sense of being enforceable in a court of law unless the parties choose to make the agreement contractually binding. 3. MEDIATION: CONCILIATION: COUNSELLING — THE DISTINCTIONS Primarily, this paper is analysing the use of the mediation process in family and neighbourhood disputes as an alternative to court adjudication. However, it must be pointed out that, particularly in potential Family Court disputes, two other dispute resolution processes are available in Australia, namely conciliation and counselling. It is important to make clear distinctions between these three processes at the outset because they are often mistakenly pushed under the one umbrella and called 'mediation'. This is not so. Fuller, for example, has said that in ordinary usage the terms 'mediation' and 'conciliation' are largely interchangeable8. All three processes may have some common elements, but they are distinct and separate processes not to be confused. 4. C.W. Moore The Mediation Process Jossey Bass, San Francisco, 1986 at 14. 5. S. Golberg E. Green & F Sander Dispute Resolution Little Brown & Co. Boston, 1985, at 490. 6. Frank E.A. Sander 'Family Mediation: Problems and Prospects' (1983) 2 Mediation Quarterly at 3. 7. Supra n.4 at 17. 8. Supra n.5 at 105. ADR - ARGUMENT FOR AND AGAINST 83 4. USE OF MEDIATION IN THE FAMILY COURT It should be noted that the word mediation is not used in the Family Law Act 1975 or the Family Law Rules or Regulations. Indeed, it is only in mid 1991 that true mediation is proposed to be introduced into the court annexed processes of the Family Court via pilot projects in New South Wales and Victoria, although the process exists in a number of agencies some of which are government funded9. 5. USE OF CONCILIATION IN THE FAMILY COURT Conciliation is arguably the ADR process that is most available in the Family Court system. It has been practised in that court by Counsellors and Deputy Registrars since the court commenced operation in 1976. It is used in two distinct ways: (i) Order 24 Conferences in property and financial matters; and (ii) Conciliation Counselling in disputes involving children. The main distinctions between these two conciliation processes and mediation are that entry into the Family Court conciliation processes is not voluntary, but compulsory (and true mediation must be a voluntary process), and further, in conciliation, the third party makes concrete recommendations, as opposed to suggestions, concerning solutions. Conciliation is, therefore, less concerned with the empowerment of parties to reach their own conclusions10. It is suggested that Jenny David's definition of conciliation is appropriate. "Entry into this process may be voluntary for the initiating party but is never voluntary for the responding party and may not be voluntary for the initiating party. The conciliator controls the process and the conciliator and the parties control the outcome"11. This should be contrasted with the elements of mediation already illustrated. Even Nicholson J., the Chief Justice of the Family Court of Australia, acknowledges this distinction between mediation and conciliation, and makes it clear that the former process will only be offered for the first time in mid 1991 as a court annexed programme. His Honour said that although it will have a number of the features of conciliation counselling, it will not be just a variation of what the court has been offering for the past 15 years12. The proposed 1991 pilot projects to be situated at Melbourne/Dandenong and Parramatta NSW, will be based on a true mediation model, that is, entry into the process will be on a voluntary basis with no element of compulsion or imposition of agreement. The mediation offered will be co-mediation, that is, with a mediation trained Registrar and Counsellor who will work as a team. His Honour also said that although mediators may, in some cases, proffer alternatives for the parties to consider they will not actively promote any of them, as is the case in the conciliation process13. It is the pros and cons of this proposed court-annexed mediation process and that available in the government agencies and the private arena which this paper will analyse — not those of the compulsory conferences. 9. See eg the Noble Park Family Mediation Centre in Victoria established in 1985. For a list of these agencies see "Exploring Family Mediation in Australia", Occasional Papers, Family Mediation Seminar, May 1988 at 14 and 15. 10. Supra n.3 at 10 and Alternative Dispute Resolution Within the Family Court of Australia, Mediation Sub- Committee Report 1990 at 4. 11. J Mugford (ed) Alternative Dispute Resolution, Australian Institute of Criminology, 1986 at 51. 12. Nicholson J. Mediation in the Family Court 65 (1991) Law Institute Journal at 61. 13. Ibid. 84 QLD. UNIVERSITY OF TECHNOLOGY LAW JOURNAL 6. COUNSELLING This paper is not concerned with the benefits or otherwise of counselling services. Counselling and mediation differ both in their objectives and in the processes used. Certainly, many of the skills of the counsellor and mediator are the same, but they are applied in different ways to different ends14.