Ethical Conundrums Facing Mediators: Comparing Processes, Identifying Challenges and Opportunities
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- Submited: December 16, 2018
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Published: December 16, 2018
Abstract
Mediation forms a core part of dispute resolution initiatives in family law and civil litigation. This article considers several ethical issues confronting mediators in family and civil disputes. We compare ethical frameworks, drawing on issues arising from mediation practice in two specific court-connected fora. Further, we make recommendations for changes to existing mediator training and to applicable standards and codes.
References
1 Joe Harman, ‘From Alternative to Primary Dispute Resolution: The pivotal role of mediation in (and in avoiding) litigation’ (Speech delivered at National Mediation Conference, Melbourne, Australia 2014) 7. The now defunct National Alternative Dispute Resolution Advisory Council (NADRAC) outlines ADR processes in Australia and, while not intended to be exhaustive, the description revealed the widespread use of ADR processes in a variety of contexts: community dispute resolution; family mediation services; courts and tribunals; statutory agencies; industry schemes; public policy dispute resolution; commercial ADR; and internal organisation ADR. The range of examples referred to above is indicative of the prevalence of ADR and mediation and also the varied nature of their use. The term mediation is used throughout this article. We use the word to refer to classic mediation processes as described by Folberg and Taylor as a process ‘[b]y which the participants, together with the assistance of a neutral person or persons, systematically isolate disputed issues in order to develop options, consider alternatives, and reach a consensual settlement that will accommodate their needs’. See Jay Folberg and Alison Taylor Mediation: A Comprehensive Guide to Resolving Conflicts without Giving In (Jossey-Bass, 1988).
2 Lawrence Boulle, Mediation: Principles, Practices, Process (Lexis Nexis, 3rd ed, 2011) 43-48.
3 Ibid 404.
4 See Bobette Wolski, ‘The “New” Limitations of Fisher and Ury’s Model of Interest-Based Negotiation: Not Necessarily the Ethical Alternative’ (2012) 19 James Cook University Law Review 127, 154-155, citing Julie MacFarlane, ‘Mediating Ethically: The Limits of Codes of Conduct and the Potential of a Reflective Practice Model’ (2002) 40 Osgoode Hall Law Journal 49, 65: Charles
Pou Jr, “‘Embracing Limbo”: Thinking About Rethinking Dispute Resolution Ethics’ (2003-2004) 108 Pennsylvania State Law Review 1 in support of the proposition.
5 For examples of State, Federal and Tribunal systems that institutionalise ADR in Australia, see Tania Sourdin, Alternative Dispute Resolution (Lawbook Co, 5th ed, 2016) 295-330.
6 For example, David Spencer, ‘The Phenomenon of the Vanishing Civil Trial’ (2005) 8(2) Australian Alternative Dispute Resolution Bulletin 1, 2.
7 Arie Freiberg, ‘Post-Adversarial and Post-Inquisitorial Justice: Transcending Traditional Penological Paradigms’ (2011) 8 European Journal of Criminology 82, 83.
8 Family Law Act 1975 (Cth) s 10F (FLA) defines FDR as ‘a process (other than a judicial process) … in which a family dispute resolution practitioner helps people … to resolve some or all of their disputes with each other; and in which the practitioner is independent of all of the parties involved in the process’.
9 Sourdin, above n 5, 107.
10 See Family Dispute Resolution Australian Government Attorney General’s Department: ‘The law requires separating families who have a dispute about children to make a genuine effort to try to sort it out through family dispute resolution (FDR) before filing an application for parenting orders in court. This requirement applies to anyone wanting to file an application with a family law court. It also includes those seeking changes to an existing parenting order. Unless an exemption applies, parties seeking to have a parenting matter determined by a family law court will need to file a certificate from an accredited FDR practitioner. The certificate is issued under s 60I of the Family Law Act 1975 (Cth) and is commonly known as a s 60I Certificate.’
11 Rachael Field, ‘Mediation Ethics in Australia – A Case for Rethinking the Foundational Paradigm’ (2012) 19 James Cook University Law Review 41, 42. See n 1 above for the Folberg and Taylor definition of mediation.
12 See Ellen A Waldman, ‘Identifying the Role of Social Norms in Mediation: A Multiple Model Approach’ (1996-1997) Hastings Law Journal 703.
13 Mary Anne Noone and Lola Akin Ojelabi ‘Ethical Challenges for Mediators around the Globe: An Australian Perspective’ (2014) 45 Washington University Journal of Law & Policy 145, 145.
14 See Hilary Astor and Christine Chinkin, Dispute Resolution in Australia (Butterworths, 2nd ed, 2002) 10, 14.
15 Harman, above n 1.
16 See William Felstiner, Richard Abel and Austin Sarat, ‘The Emergence and Transformation of Disputes; Naming, Blaming, Claiming’ (1980-1) 15 (3-4) Law and Society Review 631.
17 See Dispute Settlement Centre of Victoria, About Us.
18 For defended civil claims under $40,000. The service also provides mediation for civil disputes to a monetary value capped at the jurisdictional limit of the Magistrates’ Court of Victoria ($100,000) that are referred to mediation by a Court pursuant to Magistrates’ Court Act 1989 (Vic) s 108.
19 See Dispute Settlement Centre of Victoria, above n 17.
20 Ibid.
21 Boulle, Mediation, above n 2, 44-45.
22 Adele Carr, ‘Broadening the traditional use of mediation to resolve interlocutory issues arising in matters before the courts’ (2016) 27 Australasian Dispute Resolution Journal 10.
23 Laurence Boulle, ‘Law and Mediation: Conflict or Coalescence?’ (1996) 2 Commercial Dispute Resolution Journal 173.
24 Although no empirical data exists to support the statements, the article is based on anecdotal evidence provided by experienced practitioners.
25 FDR practitioners are specialist mediators and work under the Family Law system with couples and families who are separating. They mediate parenting, property and financial disputes, see Attorney-General’s Department, Family Dispute Resolution.
26 RAV provides training – vocational training and professional development in a range of areas relating to direct service provision as well as training and accrediting FDR Practitioners and mediators to national standards.
27 Joe Harman, ‘Should Mediation be the First Step in All Family Law Act Proceedings?’ (2016) 27 Australasian Dispute Resolution Journal 17.
28 Ibid 17.
29 FDR operates separately from and independently to the Family Court and Federal Circuit Court.
30 Boulle, above n 2, 44-45.
31 Ibid.
32 Ibid 223.
33 Ibid.
34 This position has been judicially endorsed: see the joint judgment in Aon Risk Services Australia v Australian National University (2009) 258 ALR 14.
35 Carr, above n 22, 12.
36 Susan Daicoff, ‘Making the Law Therapeutic for Lawyers: Therapeutic Jurisprudence, Preventive Law, and the Psychology of Lawyers’ (1999) 5 Psychology, Public Policy, and Law 811, 826.
37 Susan Douglas, ‘Humanising Legal Education: Lessons from ADR’ (2012) 23 Alternative Dispute Resolution Journal 216, 222.
38 R Fisher, W Ury and B Patton, Getting to Yes: Negotiating an Agreement Without Giving In (Random House Business Books, 2nd ed, 1997) cited in Just Balstad, ‘What Do Litigants Want? Comparing and Evaluating Adversarial Negotiation and ADR’ (2005) 16 Alternative Dispute Resolution Journal 244, 245.
39 Susan Daicoff, ‘Law as a Healing Profession: The Comprehensive Law Movement’ (2006) 6 Pepperdine Dispute Resolution Law Journal 1, 4.
40 See Family Law Rules 2004 (Cth) Part 1.2 Sch 1.
41 Harman, above n 27, 18.
42 See the Joint Judgment of the High Court of Australia in Aon Risk Services Australia v Australian National University (2009) 258 ALR 14.
43 See Leonie Wood, ‘Early mediation one-sided, says judge’, Sydney Morning Herald (Sydney), 1 December 2010, referring to the remarks of Justice Ray Finkelstein expressing concern about early mediation leading to injustice where one side has not received all relevant information.
44 Freiberg, above n 7, 86.
45 Michael King et al, Non-Adversarial Justice (Federation Press, 2009) 13.
46 Family Relationships Online, About Family Relationship Centres; Family Court of Australia ; Family Court Australia, Reaching an agreement without going to court, .
47 Rachel Field, ‘A Call for a Safe Model of Family Mediation’ (2016) 28 (1) Bond Law Review 83.
48 Boulle, above n 2, 144.
49 Ibid 144.
50 Robert A Baruch Bush and Joseph P Folger, Reclaiming Mediation’s Future: Getting Over the Intoxication of Expertise, Re-Focusing on Party Self-Determination (November 2014) Mediate.com.
51 Thea Brown, Becky Batagol and Tania Sourdin, ‘Family Support Program Literature Review, Research into Family Support Program: Family Law Services’ (Research Report, Australian Centre for Justice Innovation, 12 January 2012).
52 See Mediator Standards Board, The Standards.
53 Ibid.
54 The proposition is derived from anecdotal evidence as at the time of writing, there is a lack of empirical data.
55 See Law Council of Australia, Ethical Guidelines for Mediators (August 2011). See also Mary Anne Noone, ‘Lawyers as Mediators: More Responsibility?’ (2006) 17 Australian Dispute Resolution Journal 1.
56 See Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Vic) rr 17-29.
57 See Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Vic) Glossary of Terms, meaning of ‘court’.
58 See Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Vic) rr 3 and 4.
59 The Commonwealth Attorney General’s department manages the accreditation of FDR practitioners in Australia. The Family Law legislative framework sets out criteria for practice, process, and accreditation relating to qualifications and competencies. This legislative instrument references the Australian Qualifications Framework and required training.
60 Family Law (Family Dispute Resolution Practitioners) Regulations (Cth) r 15.
61 Oyiela Litaba ‘Developing Ethical Practice as a Family Dispute Resolution Practitioner’ (2013) 24 Australasian Dispute Resolution Journal 36.
62 Michele Leering ‘Conceptualizing Reflective Practice for Legal Professionals’ (2014) 23 Journal of Law and Social Policy 23.
63 See Samantha Hardy and Olivia Rundle, ‘Applying the Inclusive Model of Ethical Decision Making to Mediation’ (2012) 19 James Cook University Law Review 70. See also Donald A Schön, The Reflective Practitioner: How Professionals Think in Action (Basic Books, New York, 1983) for a seminal discussion of reflective practice.
64 See Jonathan Crowe, ‘Ethics and the Mediation Community’ (2015) 26 Australasian Dispute Resolution Journal 20.
65 See Family Law Act 1975 (Cth) ss 10H, 19N.
66 The legislative bases and relevant processes are set out in Magistrates’ Court Act 1989 (Vic), s 3; Magistrates’ Court General Civil Procedure Rules 2010 (Vic) r 22A.02; Civil Procedure Act 2010 (Vic) ss 3, 66-67.
67 Rachael Field and Neal Wood, ‘Marketing Mediation Ethically: The Case of Confidentiality’ (2005) 5(2) Queensland University of Technology Law and Justice Journal 143, 147; Sourdin, above n 5, 479.
68 See, for example, the High Court of Australia joint judgment nearly 60 years ago in Field v Commissioner of Railways (NSW) (1957) 99 CLR 285. See also Field and Wood, above n 67, 145. 69 See National Mediator Accreditation System Standards (July 2015), standard 9.
70 Sourdin, Alternative Dispute Resolution, above n 5, 479; Anthony A Nolan and Michael O’Brien, ‘Confidentiality in Mediations – A Work in Progress’ (unpublished paper, 12 May 2010).
71 See Evidence Act 2008 (Vic) s 131.
72 For example, Anthony A Nolan and Michael O’Brien, ‘Confidentiality in Mediations: A Work in Progress’ (unpublished paper, 12 May 2010).
73 Tom Altobelli and Diana Bryant, ‘Has Confidentiality in Family Dispute Resolution Reached its Use-by Date?’ in Daryl J Higgins (ed), Families, Policy and the Law (Australian Institute of Family Studies, 2014) 195.
74 Ibid.
75 Nils Christie, ‘Conflicts as Property’ (1977) 17 British Journal of Criminology 1; Boulle, above n 2, 63.
76 See Nancy A Welsh, ‘Reconciling Self-Determination, Coercion, and Settlement in Court-Connected Mediation’ in Jay Folberg, Ann L Milne and Peter Salem (eds), Divorce and Family Mediation: Models, Techniques, and Applications (Guilford Publications, 2004) 420.
77 The following cases are instances where courts have used their discretion to mandate mediation without consent of the parties to the dispute: Sellar v Lasotav Pty Ltd [2008] FCA 1766; Waterhouse v Perkins [2001] NSWSC 13; Idoport Pty Ltd v NAB Ltd [2001] NSWSC 427; Dickerson v Brown [2001] NSWSC 714. These cases illustrate the point that mediation theory and practice differ, thereby creating ethical issues for mediators.
78 Astor and Chinkin, above n 14, 270. National Alternative Dispute Resolution Advisory Council (NADRAC), A Framework for ADR Standards, Report to the Commonwealth Attorney-General (April 2001) 24 [2.59] reports that efforts to estimate ‘the level of service demand and usage is … problematic’.
79 John Wade, ‘Don’t Waste my Time on Negotiation and Mediation: This Dispute Needs a Judge’ (2001) 18 Mediation Quarterly 259, 272, cited in Cameron Green, ‘ADR: Where Did the “Alternative” Go? Why Mediation Should Not Be a Mandatory Step in the Litigation Process’ (2010) 12(3) Australian Alternative Dispute Resolution Bulletin 2, 3.
80 Australian Law Reform Commission, Managing Justice: Review of the Federal Civil Justice System (2000) 108.
81 See Family Law Act (Cth) 1975 s 601.
82 See PA Bergin, Judicial Mediation in Australia (Paper presented at the National Judicial College, Beijing, 25-28 April 2011) 2.
83 Grant Dearlove, ‘Sanctions for the Recalcitrant Lawyer and Party’ (1999) 2(3) Australian Alternative Dispute Resolution Bulletin.
84 See Tania Sourdin, ‘Good Faith, Bad Faith? Making an Effort in Dispute Resolution’ (2012) Good Faith Paper 1.
85 See ibid for case law examples.
86 Family Law Act 1975 (Cth) s 60I.
87 See Civil Procedure Act 2010 (Vic) ss 16-26.
88 See Harman, above n 1.
89 See Waldman, above n 12.
90 Ibid 719.
91 See PA Samuelson, Economics: An Introductory Analysis (McGraw-Hill Book Company, 7th ed, 1967) 47. See Civil Procedure Act 2010 (Vic) s 9(1)(b).
92 See The Hon T F Bathurst AC, Chief Justice of New South Wales, Opening of Law Term Address ‘Reformulating Reform: Courts and the Public Good’, 4 February 2015.
93 See Waldman, above n 12.
94 Olivia Rundle, ‘Barking Dogs: Lawyer Attitudes Towards Direct Disputant Participation in Court-Connected Mediation of General Civil Cases’ (2008) 8 Queensland University of Technology Law and Justice Journal 77, 91.
95 Ibid.
96 See Part 1 – Introduction, Purpose.
97 See Rebecca Hollander-Blumoff and Tom R Tyler, ‘Procedural Justice and the Rule of Law: Fostering Legitimacy in Alternative Dispute Resolution’ (2011) 1 Journal of Dispute Resolution 1.
98 Tom R Tyler, ‘Citizen Discontent with Legal Procedures: A Social Science Perspective on Civil Procedure Reform’ (1997) 45 American Journal of Contemporary Law 871, 887.
99 Elizabeth Mullen and Linda J Skitka, ‘When Outcomes Prompt Criticism of Procedures: An Analysis of the Rodney King Case’ (2006) 6 Analyses of Social Issues and Public Policy 1, 2 citing E Allan Lind and Tom R Tyler, The Social Psychology of Procedural Justice (Plenum Press, 1988).
100 NADRAC, A Framework for ADR Standards, above n 78, 13-14 [2.3].
101 For example, in the mediation process, if and when to break from joint session into separate session.
102 See E Allan Lind and Tom R Tyler, The Social Psychology of Procedural Justice (Plenum Press, 1988).
103 See Timothy Hedeen, ‘Coercion and Self-determination in Court-connected Mediation: All Mediations are Voluntary, But Some are More Voluntary Than Others’ (2005) 26(3) Justice System Journal Denver 273.
104 See Family Law Act 1975 (Cth) s 60I: (1) The object of this section is to ensure that all persons who have a dispute about matters that may be dealt with by an order under this Part (a Part VII order) make a genuine effort to resolve that dispute by family dispute resolution before the Part VII order is applied for. … (7) Subject to subsection (9), a court exercising jurisdiction under this Act must not hear an application for a Part VII order in relation to a child unless the applicant files in the court a certificate given to the applicant by a family dispute resolution practitioner under subsection (8). The certificate must be filed with the application for the Part VII order. See also Mark J Rankin, ‘Settlement at All Costs: The High Price of an Inexpensive Resolution?’ (2009) 20 Australasian Dispute Resolution Journal 153, 154.
105 ‘Managing Justice: Review of the Federal Civil Justice System’ (Discussion Paper No 62, Australian Law Reform Commission, 1999) 28.76-28.78.
106 Timothy Hedeen, ‘Coercion and Self-Determination in Court-Connected Mediation: All Mediations are Voluntary, but Some are More Voluntary than Others’ (2005) 26 Justice System Journal Denver 273.
107 Mark J Rankin, ‘Settlement at All Cost: The High Price of an Inexpensive Resolution?’ (2009) 20 Australasian Dispute Resolution Journal 153, 155.
108 Ibid.
109 Tapoohi v Lewenberg [2003] VSC 410.
110 John Wade, ‘Liability of Mediators for Pressure, Drafting and Advice’ (2004) 6(97) Australian Alternative Dispute Resolution Bulletin 131.
111 Chief Justice RS French, ‘State of the Judicature’ (2010) 84 Australian Law Journal 310, 316 quoting Fix-Fierro, Courts, Justice & Efficiency-A Socio-legal Study of Economics Rationality in Adjudication (2003) 8.
112 Michael Kirby, ‘Alternative Dispute Resolution-A Hard-Nosed View of Its Strengths and Limitations’ (Paper presented at the Institute of Arbitrators and Mediators Australia, South Australian Chapter, Adelaide, 29 July 2009).
113 See Malcolm M Feely, The Process is the Punishment (Russell Sage Foundation, 1992).
114 Carrie Menkel-Meadow, ‘From Legal Disputes to Conflict Resolution and Human Problem Solving: Legal Dispute Resolution in a Multidisciplinary Context’ (2004) 54 Journal of Legal Education 6.
2 Lawrence Boulle, Mediation: Principles, Practices, Process (Lexis Nexis, 3rd ed, 2011) 43-48.
3 Ibid 404.
4 See Bobette Wolski, ‘The “New” Limitations of Fisher and Ury’s Model of Interest-Based Negotiation: Not Necessarily the Ethical Alternative’ (2012) 19 James Cook University Law Review 127, 154-155, citing Julie MacFarlane, ‘Mediating Ethically: The Limits of Codes of Conduct and the Potential of a Reflective Practice Model’ (2002) 40 Osgoode Hall Law Journal 49, 65: Charles
Pou Jr, “‘Embracing Limbo”: Thinking About Rethinking Dispute Resolution Ethics’ (2003-2004) 108 Pennsylvania State Law Review 1 in support of the proposition.
5 For examples of State, Federal and Tribunal systems that institutionalise ADR in Australia, see Tania Sourdin, Alternative Dispute Resolution (Lawbook Co, 5th ed, 2016) 295-330.
6 For example, David Spencer, ‘The Phenomenon of the Vanishing Civil Trial’ (2005) 8(2) Australian Alternative Dispute Resolution Bulletin 1, 2.
7 Arie Freiberg, ‘Post-Adversarial and Post-Inquisitorial Justice: Transcending Traditional Penological Paradigms’ (2011) 8 European Journal of Criminology 82, 83.
8 Family Law Act 1975 (Cth) s 10F (FLA) defines FDR as ‘a process (other than a judicial process) … in which a family dispute resolution practitioner helps people … to resolve some or all of their disputes with each other; and in which the practitioner is independent of all of the parties involved in the process’.
9 Sourdin, above n 5, 107.
10 See Family Dispute Resolution Australian Government Attorney General’s Department
11 Rachael Field, ‘Mediation Ethics in Australia – A Case for Rethinking the Foundational Paradigm’ (2012) 19 James Cook University Law Review 41, 42. See n 1 above for the Folberg and Taylor definition of mediation.
12 See Ellen A Waldman, ‘Identifying the Role of Social Norms in Mediation: A Multiple Model Approach’ (1996-1997) Hastings Law Journal 703.
13 Mary Anne Noone and Lola Akin Ojelabi ‘Ethical Challenges for Mediators around the Globe: An Australian Perspective’ (2014) 45 Washington University Journal of Law & Policy 145, 145.
14 See Hilary Astor and Christine Chinkin, Dispute Resolution in Australia (Butterworths, 2nd ed, 2002) 10, 14.
15 Harman, above n 1.
16 See William Felstiner, Richard Abel and Austin Sarat, ‘The Emergence and Transformation of Disputes; Naming, Blaming, Claiming’ (1980-1) 15 (3-4) Law and Society Review 631.
17 See Dispute Settlement Centre of Victoria, About Us
18 For defended civil claims under $40,000. The service also provides mediation for civil disputes to a monetary value capped at the jurisdictional limit of the Magistrates’ Court of Victoria ($100,000) that are referred to mediation by a Court pursuant to Magistrates’ Court Act 1989 (Vic) s 108.
19 See Dispute Settlement Centre of Victoria, above n 17.
20 Ibid.
21 Boulle, Mediation, above n 2, 44-45.
22 Adele Carr, ‘Broadening the traditional use of mediation to resolve interlocutory issues arising in matters before the courts’ (2016) 27 Australasian Dispute Resolution Journal 10.
23 Laurence Boulle, ‘Law and Mediation: Conflict or Coalescence?’ (1996) 2 Commercial Dispute Resolution Journal 173.
24 Although no empirical data exists to support the statements, the article is based on anecdotal evidence provided by experienced practitioners.
25 FDR practitioners are specialist mediators and work under the Family Law system with couples and families who are separating. They mediate parenting, property and financial disputes, see Attorney-General’s Department, Family Dispute Resolution
26 RAV provides training – vocational training and professional development in a range of areas relating to direct service provision as well as training and accrediting FDR Practitioners and mediators to national standards.
27 Joe Harman, ‘Should Mediation be the First Step in All Family Law Act Proceedings?’ (2016) 27 Australasian Dispute Resolution Journal 17.
28 Ibid 17.
29 FDR operates separately from and independently to the Family Court and Federal Circuit Court.
30 Boulle, above n 2, 44-45.
31 Ibid.
32 Ibid 223.
33 Ibid.
34 This position has been judicially endorsed: see the joint judgment in Aon Risk Services Australia v Australian National University (2009) 258 ALR 14.
35 Carr, above n 22, 12.
36 Susan Daicoff, ‘Making the Law Therapeutic for Lawyers: Therapeutic Jurisprudence, Preventive Law, and the Psychology of Lawyers’ (1999) 5 Psychology, Public Policy, and Law 811, 826.
37 Susan Douglas, ‘Humanising Legal Education: Lessons from ADR’ (2012) 23 Alternative Dispute Resolution Journal 216, 222.
38 R Fisher, W Ury and B Patton, Getting to Yes: Negotiating an Agreement Without Giving In (Random House Business Books, 2nd ed, 1997) cited in Just Balstad, ‘What Do Litigants Want? Comparing and Evaluating Adversarial Negotiation and ADR’ (2005) 16 Alternative Dispute Resolution Journal 244, 245.
39 Susan Daicoff, ‘Law as a Healing Profession: The Comprehensive Law Movement’ (2006) 6 Pepperdine Dispute Resolution Law Journal 1, 4.
40 See Family Law Rules 2004 (Cth) Part 1.2 Sch 1.
41 Harman, above n 27, 18.
42 See the Joint Judgment of the High Court of Australia in Aon Risk Services Australia v Australian National University (2009) 258 ALR 14.
43 See Leonie Wood, ‘Early mediation one-sided, says judge’, Sydney Morning Herald (Sydney), 1 December 2010, referring to the remarks of Justice Ray Finkelstein expressing concern about early mediation leading to injustice where one side has not received all relevant information.
44 Freiberg, above n 7, 86.
45 Michael King et al, Non-Adversarial Justice (Federation Press, 2009) 13.
46 Family Relationships Online, About Family Relationship Centres
47 Rachel Field, ‘A Call for a Safe Model of Family Mediation’ (2016) 28 (1) Bond Law Review 83.
48 Boulle, above n 2, 144.
49 Ibid 144.
50 Robert A Baruch Bush and Joseph P Folger, Reclaiming Mediation’s Future: Getting Over the Intoxication of Expertise, Re-Focusing on Party Self-Determination (November 2014) Mediate.com
51 Thea Brown, Becky Batagol and Tania Sourdin, ‘Family Support Program Literature Review, Research into Family Support Program: Family Law Services’ (Research Report, Australian Centre for Justice Innovation, 12 January 2012).
52 See Mediator Standards Board, The Standards
53 Ibid.
54 The proposition is derived from anecdotal evidence as at the time of writing, there is a lack of empirical data.
55 See Law Council of Australia, Ethical Guidelines for Mediators (August 2011)
56 See Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Vic) rr 17-29.
57 See Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Vic) Glossary of Terms, meaning of ‘court’.
58 See Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Vic) rr 3 and 4.
59 The Commonwealth Attorney General’s department manages the accreditation of FDR practitioners in Australia. The Family Law legislative framework sets out criteria for practice, process, and accreditation relating to qualifications and competencies. This legislative instrument references the Australian Qualifications Framework and required training.
60 Family Law (Family Dispute Resolution Practitioners) Regulations (Cth) r 15.
61 Oyiela Litaba ‘Developing Ethical Practice as a Family Dispute Resolution Practitioner’ (2013) 24 Australasian Dispute Resolution Journal 36.
62 Michele Leering ‘Conceptualizing Reflective Practice for Legal Professionals’ (2014) 23 Journal of Law and Social Policy 23.
63 See Samantha Hardy and Olivia Rundle, ‘Applying the Inclusive Model of Ethical Decision Making to Mediation’ (2012) 19 James Cook University Law Review 70. See also Donald A Schön, The Reflective Practitioner: How Professionals Think in Action (Basic Books, New York, 1983) for a seminal discussion of reflective practice.
64 See Jonathan Crowe, ‘Ethics and the Mediation Community’ (2015) 26 Australasian Dispute Resolution Journal 20.
65 See Family Law Act 1975 (Cth) ss 10H, 19N.
66 The legislative bases and relevant processes are set out in Magistrates’ Court Act 1989 (Vic), s 3; Magistrates’ Court General Civil Procedure Rules 2010 (Vic) r 22A.02; Civil Procedure Act 2010 (Vic) ss 3, 66-67.
67 Rachael Field and Neal Wood, ‘Marketing Mediation Ethically: The Case of Confidentiality’ (2005) 5(2) Queensland University of Technology Law and Justice Journal 143, 147; Sourdin, above n 5, 479.
68 See, for example, the High Court of Australia joint judgment nearly 60 years ago in Field v Commissioner of Railways (NSW) (1957) 99 CLR 285. See also Field and Wood, above n 67, 145. 69 See National Mediator Accreditation System Standards (July 2015), standard 9.
70 Sourdin, Alternative Dispute Resolution, above n 5, 479; Anthony A Nolan and Michael O’Brien, ‘Confidentiality in Mediations – A Work in Progress’ (unpublished paper, 12 May 2010).
71 See Evidence Act 2008 (Vic) s 131.
72 For example, Anthony A Nolan and Michael O’Brien, ‘Confidentiality in Mediations: A Work in Progress’ (unpublished paper, 12 May 2010).
73 Tom Altobelli and Diana Bryant, ‘Has Confidentiality in Family Dispute Resolution Reached its Use-by Date?’ in Daryl J Higgins (ed), Families, Policy and the Law (Australian Institute of Family Studies, 2014) 195.
74 Ibid.
75 Nils Christie, ‘Conflicts as Property’ (1977) 17 British Journal of Criminology 1; Boulle, above n 2, 63.
76 See Nancy A Welsh, ‘Reconciling Self-Determination, Coercion, and Settlement in Court-Connected Mediation’ in Jay Folberg, Ann L Milne and Peter Salem (eds), Divorce and Family Mediation: Models, Techniques, and Applications (Guilford Publications, 2004) 420.
77 The following cases are instances where courts have used their discretion to mandate mediation without consent of the parties to the dispute: Sellar v Lasotav Pty Ltd [2008] FCA 1766; Waterhouse v Perkins [2001] NSWSC 13; Idoport Pty Ltd v NAB Ltd [2001] NSWSC 427; Dickerson v Brown [2001] NSWSC 714. These cases illustrate the point that mediation theory and practice differ, thereby creating ethical issues for mediators.
78 Astor and Chinkin, above n 14, 270. National Alternative Dispute Resolution Advisory Council (NADRAC), A Framework for ADR Standards, Report to the Commonwealth Attorney-General (April 2001) 24 [2.59] reports that efforts to estimate ‘the level of service demand and usage is … problematic’.
79 John Wade, ‘Don’t Waste my Time on Negotiation and Mediation: This Dispute Needs a Judge’ (2001) 18 Mediation Quarterly 259, 272, cited in Cameron Green, ‘ADR: Where Did the “Alternative” Go? Why Mediation Should Not Be a Mandatory Step in the Litigation Process’ (2010) 12(3) Australian Alternative Dispute Resolution Bulletin 2, 3.
80 Australian Law Reform Commission, Managing Justice: Review of the Federal Civil Justice System (2000) 108.
81 See Family Law Act (Cth) 1975 s 601.
82 See PA Bergin, Judicial Mediation in Australia (Paper presented at the National Judicial College, Beijing, 25-28 April 2011) 2
83 Grant Dearlove, ‘Sanctions for the Recalcitrant Lawyer and Party’ (1999) 2(3) Australian Alternative Dispute Resolution Bulletin
84 See Tania Sourdin, ‘Good Faith, Bad Faith? Making an Effort in Dispute Resolution’ (2012) Good Faith Paper 1
85 See ibid for case law examples.
86 Family Law Act 1975 (Cth) s 60I.
87 See Civil Procedure Act 2010 (Vic) ss 16-26.
88 See Harman, above n 1.
89 See Waldman, above n 12.
90 Ibid 719.
91 See PA Samuelson, Economics: An Introductory Analysis (McGraw-Hill Book Company, 7th ed, 1967) 47. See Civil Procedure Act 2010 (Vic) s 9(1)(b).
92 See The Hon T F Bathurst AC, Chief Justice of New South Wales, Opening of Law Term Address ‘Reformulating Reform: Courts and the Public Good’, 4 February 2015.
93 See Waldman, above n 12.
94 Olivia Rundle, ‘Barking Dogs: Lawyer Attitudes Towards Direct Disputant Participation in Court-Connected Mediation of General Civil Cases’ (2008) 8 Queensland University of Technology Law and Justice Journal 77, 91.
95 Ibid.
96 See Part 1 – Introduction, Purpose.
97 See Rebecca Hollander-Blumoff and Tom R Tyler, ‘Procedural Justice and the Rule of Law: Fostering Legitimacy in Alternative Dispute Resolution’ (2011) 1 Journal of Dispute Resolution 1.
98 Tom R Tyler, ‘Citizen Discontent with Legal Procedures: A Social Science Perspective on Civil Procedure Reform’ (1997) 45 American Journal of Contemporary Law 871, 887.
99 Elizabeth Mullen and Linda J Skitka, ‘When Outcomes Prompt Criticism of Procedures: An Analysis of the Rodney King Case’ (2006) 6 Analyses of Social Issues and Public Policy 1, 2 citing E Allan Lind and Tom R Tyler, The Social Psychology of Procedural Justice (Plenum Press, 1988).
100 NADRAC, A Framework for ADR Standards, above n 78, 13-14 [2.3].
101 For example, in the mediation process, if and when to break from joint session into separate session.
102 See E Allan Lind and Tom R Tyler, The Social Psychology of Procedural Justice (Plenum Press, 1988).
103 See Timothy Hedeen, ‘Coercion and Self-determination in Court-connected Mediation: All Mediations are Voluntary, But Some are More Voluntary Than Others’ (2005) 26(3) Justice System Journal Denver 273.
104 See Family Law Act 1975 (Cth) s 60I: (1) The object of this section is to ensure that all persons who have a dispute about matters that may be dealt with by an order under this Part (a Part VII order) make a genuine effort to resolve that dispute by family dispute resolution before the Part VII order is applied for. … (7) Subject to subsection (9), a court exercising jurisdiction under this Act must not hear an application for a Part VII order in relation to a child unless the applicant files in the court a certificate given to the applicant by a family dispute resolution practitioner under subsection (8). The certificate must be filed with the application for the Part VII order. See also Mark J Rankin, ‘Settlement at All Costs: The High Price of an Inexpensive Resolution?’ (2009) 20 Australasian Dispute Resolution Journal 153, 154.
105 ‘Managing Justice: Review of the Federal Civil Justice System’ (Discussion Paper No 62, Australian Law Reform Commission, 1999) 28.76-28.78.
106 Timothy Hedeen, ‘Coercion and Self-Determination in Court-Connected Mediation: All Mediations are Voluntary, but Some are More Voluntary than Others’ (2005) 26 Justice System Journal Denver 273.
107 Mark J Rankin, ‘Settlement at All Cost: The High Price of an Inexpensive Resolution?’ (2009) 20 Australasian Dispute Resolution Journal 153, 155.
108 Ibid.
109 Tapoohi v Lewenberg [2003] VSC 410.
110 John Wade, ‘Liability of Mediators for Pressure, Drafting and Advice’ (2004) 6(97) Australian Alternative Dispute Resolution Bulletin 131.
111 Chief Justice RS French, ‘State of the Judicature’ (2010) 84 Australian Law Journal 310, 316 quoting Fix-Fierro, Courts, Justice & Efficiency-A Socio-legal Study of Economics Rationality in Adjudication (2003) 8.
112 Michael Kirby, ‘Alternative Dispute Resolution-A Hard-Nosed View of Its Strengths and Limitations’ (Paper presented at the Institute of Arbitrators and Mediators Australia, South Australian Chapter, Adelaide, 29 July 2009).
113 See Malcolm M Feely, The Process is the Punishment (Russell Sage Foundation, 1992).
114 Carrie Menkel-Meadow, ‘From Legal Disputes to Conflict Resolution and Human Problem Solving: Legal Dispute Resolution in a Multidisciplinary Context’ (2004) 54 Journal of Legal Education 6.
How to Cite
1.
Gutman J, Grant J. Ethical Conundrums Facing Mediators: Comparing Processes, Identifying Challenges and Opportunities. LiC [Internet]. 2018Dec.16 [cited 2024Jun.26];35(1). Available from: https://journals.latrobe.edu.au/index.php/law-in-context/article/view/34