National Alternative Dispute Resolution Advisory Council
Responses to NADRAC Discussion Paper
ADR Terminology 1
Responses to NADRAC Discussion Paper 1
ADR Terminology: a discussion paper was launched by the Attorney-General in Perth on 12 June 2002. NADRAC mailed copies were mailed to all those on its contact list, with a covering letter for the NADRAC Chair.
The paper aimed to promote discussion about definitions and descriptions of terms used within the discipline of ADR. It canvassed arguments for and against common terminology, identified current issues about particular ADR terms and suggested possible approaches for the future.
NADRAC invited responses to the paper from a wide variety of groups. Responses could address specific questions raised in the paper, deal with questions or issues overlooked in the paper, or address the issue of ADR terminology in a general way. The deadline for responses was 31 December 2002, although extensions were granted where agencies indicated that they were in the process of finalising submissions. The discussion paper, and a subsequent letter of acknowledgment letter, stipulated that, unless advised otherwise, NADRAC ‘may make written responses available in whole or in part to others, or may publish responses as part of its papers’.
A total of 17 responses were received. Of these 15 constituted a formal response to the issues raised in the paper. Another two responses did not formally address the questions or issues in the paper, but generally endorsed the information contained it.
The breakdown of responses is shown in table 1 below.
Table 1 Breakdown of submissions
The response rate was not overwhelming, but was in line with expectations. As raised in the paper, debates about terminology may be of more interest to academic audiences than to the community at large. Informal discussion indicated that many found the issues quite difficult. There was also a divergence of views within as well as between agencies.
Section 2 of this report includes general responses received, that is, responses that did not refer to specific question listed in the paper. Section 3 of this report consolidates the responses to specific question. Section 4 provides an analysis of the responses.
The NADRAC secretariat has made minor style editing changes to the submissions. The report refers to, but does not reproduce, articles, papers or submissions referred to in the responses, but which have been previously published elsewhere or submitted to another body.
The Hon. Sir Laurence Street NSW
Ms Rae Keane WA
Carolyn Bond and Chris Field Consumer Credit Legal Service Inc VIC
Dr Yvonne Craig UK
Ms Daniela Kirchlinde Insurance Brokers Disputes Limited VIC
Dr Carole O'Donnell Univeristy of Sydney NSW
Ms Vanessa Richardson A Winning Way - Conflict Management Group VIC
Mr Jeff Katz Australian Family Mediation Association VIC
Mr Gerald Raftesath LEADR NSW
Mr Max Wright Family Mediation Centre VIC
Mr Andrew Goode Law Society of South Australia SA
The Hon. Chief Justice M E J Black Federal Court of Australia VIC
Ms Susan Cibau Federal Magisrates Service VIC
Mr Bill O'Shea Law Institute of Victoria VIC
Mr Robert Benjamin NSW Law Society NSW
Mr David Kerslake Health Rights Commission QLD
Ms Janet Cooper Administrative Appeals Tribunal NSW
After attendance at the NADRAC Forum held in Perth on the 12th June 2002, attendance at similar forums and reading associated literature over the past two years, I feel compelled to offer the following comments. These comments are made in a constructive spirit and represent my personal opinion.
Over the past two years it seems to me that there has been a circular debate, re-introduced on the 12th of June, regarding:
The need for clarity in ADR definitions and standards
The need for state-based/national regulatory body
The need for public education about ADR
The need to promote public use of ADR
The need to promote diversity within ADR practitioners
The need for clearly defined qualifications for legal and, particularly, non legal ADR practitioners.
The need to systematically gather meaningful qualitative data
It appears to me that unless there is clarity regarding ADR definitions, nothing else will follow. Therefore, I believe it is time to ‘draw a line in the sand’ and issue definitions of the basic ADR practices – e.g. negotiation, conciliation, mediation, arbitration with accompanying descriptions of variations of process within each particular discipline. For example in the case of mediation – facilitative, advisory and determinative as already identified by NADRAC. I agree wholeheartedly with the comments in the ADR Terminology Discussion paper at 1.4 that, although technical audiences benefit from comprehensive analysis and discussion of the terminology, ultimately the terms (and definitions) should serve the interests of those using the services. The development of a common and simple language for ADR would, I believe be most useful for practitioners and, perhaps more importantly, be more “user-friendly” for the potential clients we seek to attract and educate.
In talking about problems with common terminology in Section 2.2, the discussion Paper states that A minor departure from a legally defined ADR process may invalidate the entire process and cause extra cost and inconvenience for the parties. And later in the same section ………Multiple meanings may co-exist. The meaning of a word, such as ‘mediation’, is not determined by its formal definition but arises out of the interaction between the ADR practitioner and the parties. I believe this perceived difficulty can be overcome by identifying within the particular legislation the appropriate form of dispute resolution to be used, or providing the facility for the parties to agree on the form of the process. If facilitative mediation is prescribed there is no conflict about what this means providing common definitions and descriptions are already in place.
NADRAC is a nationally recognised and influential body who appear to be the ideal entity to pull together representatives of each State ADR Association (WADRA in WA) and strongly suggest each State adopt and promote NADRAC definitions as a starting point to establish State regulatory bodies. Without clear definitions, there is nothing concrete to regulate. Without a recognised regulator, ADR practices and practitioners lack credibility with the public and until such a body is in place educational and promotional activities will remain ad hoc and ineffective. The role of this regulatory body must, as a priority, address standards of practice, qualifications of practitioners and provide a vehicle to receive public complaints regarding ADR practitioners’ practice.
A useful parallel could be drawn with the “battle” waged when chiropractors sought to be recognised by the public and by the medical fraternity. These people faced a similar position now surrounding ADR practitioners – no matter how well qualified they were, there was a degree of “quackery” surrounding them and, I might add, this perception was not discouraged by the medical practitioners. Non-legally qualified mediators often face a similar position. After many years, chiropractors have established a position in their own right and now (Heaven forbid) appear to be accepted by and even work in tandem with medical practitioners.
While academic debate is useful, necessary and informative, I believe there is a need to move forward in the practical application of ADR philosophies. To do this we need State and Federal regulatory bodies and before this we must have commonly accepted definitions and descriptions. To move forward in this debate I strongly believe NADRAC should use its national position to lead the way.
Sir Laurence Street
I should like to submit a response to the discussion paper on terminology. The fundamental term that needs to be brought up to date, and which has given rise to sterile, and at times misleading, debate is ADR itself.
The ADR evolution has progressed in recent decades to the point where the letters “ADR” have acquired a generic significance. In the early days the letters emerged as an acronym for Alternative Dispute Resolution. Concerns have been expressed that this not only cloaks a looseness of meaning but that it can be positively misleading.
The looseness of meaning has led to the oft-repeated question “alternative to what?” This has produced a number of suggested other “A” words aimed at identifying ADR as a dispute resolution concept in its own right and not as an alternative to some other procedures.
Where the letters can be positively misleading is in the suggestion that they appear to refer to procedures that are dispute resolution procedures alternative to what is implicitly (and erroneously) suggested to be the dispute resolution function of the adjudicative or determinative process of litigation.
In the final analysis, adjudicative or determinative processes are not dispute resolution processes. Judges do not resolve disputes coming before their courts; they decide disputes or adjudicate on them. Disputes are resolved through consensual interaction between the disputants. This is no idle play on words; the deciding of a dispute involves a fundamentally different approach by the judge from the approach of a mediator who, in promoting or facilitating resolution of the dispute by the parties themselves, does not purport to decide the issues between them.
The important distinction between deciding and resolving disputes has been masked by the use of the letters ADR and by attempts to render them meaningful. I believe that the time has now come when further debate on this topic is profitless.
In the broader community the three letters themselves are increasingly being used to describe a consensus-oriented approach to fields of human interaction. For example, in addressing a systemic approach to workplace grievances and other potential problems in the human resource field it is not uncommon to see references to such phrases and “introducing ADR to the workplace”; a wider scope is gradually being attributed to ADR than merely the end stage of resolving workplace conflicts; it extends back to the avoidance and management of such conflicts. Again, there are to be found similar developing usages in the field of customer relations; some service and goods providers are openly proclaiming a policy of adopting an ADR approach in their complaints handling systems extending to avoiding and managing the conflict potentiality of complaints. In 1996 the authors of “Designing Conflict Management Systems” (Constantino and Merchant Designing Conflict Management Systems, Jossey Bass. San Francisco) wrote of “designing preventive ADR methods” for inclusion in “recommendations for furtherance of systemic management of conflict”.
In short, as the letters ADR are gaining a wider currency in ordinary usage, so are they gaining a broader connotation extending beyond mere dispute resolution processes. Recognising this, the letters should be seen in their own right as describing an holistic concept of a consensus-oriented approach to dealing with potential and actual disputes or conflict. The concept encompasses conflict avoidance, conflict management and conflict resolution. The over-arching element of ADR in addressing these three aspects of conflict is the consensus-oriented philosophy that pervades the newly evolving recognition that conflict avoidance, management and resolution are simply three closely related sequential approaches each of which has relevance and application within the broad field of social, commercial and personal interaction. This is inherently the province and function of ADR.
As a British Magistrates Court Chairman for 20 years who chose ADR, and practised it for 15 years plus as a preferred form of social justice, I have always greatly admired and appreciated NADRAC’s rigorous concern to legitimate mediation processes. However, just as ‘law’ has never been finally defined, but is subject to various jurisdictional descriptions, so ADR has multiple meanings and usages according to different cultural and social contexts. In general, I welcome NADRAC’s continuing efforts to trace and record these varying interpretations of ADR, but hope that we will all continue to value the flexibility and learning curve attributes of its many processes and practitioners, and avoid dogma, canonical approaches and hubris in trying to over define it. Nevertheless, the continuing discourse is important in clarifying our views and professional practice, the debate about ethics, values and principles is a major contribution to social justice.
Insurance Brokers Disputes Limited
The paper appears to be largely commentating on philosophical and theocratical aspects of alternative dispute resolution, rather than focusing on current market issues and problems, in particular with regards to the implementation of the new Financial Services Reform Act.
ADR procedures are already an accepted form of dispute resolution. Their objective is not to replace the legal system, but to reach solutions acceptable to all parties involved in a dispute without having to resort to costly legislation and resources.
The Terminology used in ADR processes should reflect terminology used in the relevant industry (ie bank, insurance, broking, etc).
We understand that ASIC is currently issuing guidelines to harmonise the statistics and information collected from the various disputes facilities.
We use the Australian Standard for Complaint handling AS4269-1995, which give guidelines in regards to essential elements of effective complaints handling procedures. It serves as a reference document on current best practice for handling complaints and has been recommended by ASIC.
Consumer Law Centre Victoria and the Consumer Credit Legal Service (Vic).
While Industry ADR appears to fall outside the scope of NADRAC's role, it is important to recognise this large ADR sector in ADR terminology, and include accurate and meaningful explanations of industry ADR in ADR terminology.
Industry ADR handles over 100,000 complaints and disputes per year in Australia (not including general enquiries).
Recent changes to financial services legislation has seen many financial service providers required to belong to an ADR scheme approved by Australian Securities and Investments Commission (ASIC) as a licence condition. ASIC has developed Industry ADR guidelines, based on the Federal Benchmarks, and plays an active role in monitoring Industry ADR standards.
I find the key distinctions between facilitative, advisory and determinative processes particularly useful for teaching purposes.
I realise one does not want to get bogged down in definitions, but I note that you have not included the United Nations backed concept of Restorative Justice in your booklet. Personally, I think this term is a better one for many purposes than ‘alternative dispute resolution’.
Alternative dispute resolution sounds a rather marginal activity undertaken by old hippies and others who can't afford the right stuff - proper, adversarial British justice, with stupid rules, incomprehensible language, wigs and juries when necessary.
Health Rights Commission (HRC).
The HRC would like to congratulate the authors of the discussion paper on terminology for the amount of work and the concise nature of the paper. On this occasion the HRC believe there is no need to make a submission as all terminology of the specific work of the HRC has been covered.
Administrative Appeals Tribunal
Although we have no specific comments on the paper, members indicated that for ease of clarity, they supported the development of consistent ADR terminology (even if it is limited to agreeing on the basic definitions).
Australian Family Mediation Association
The Australian Family Mediation Association (AFMA) is a Melbourne-based umbrella organisation representing family mediators in a number of Australian States and Territories and concerned with the practice of family mediation generally. Its members are derived from a broad range of contexts: including practising mediators in the Court-based, community and private sectors, legal practitioners, psychologists and social workers, and academia.
This response seeks to address certain aspects of the broader issues outlined in the discussion paper regarding the use of terms within the ADR discipline in Australia. Specifically, it is confined to that area of particular interest to AFMA, namely family mediation. It addresses some of the particular concerns and interests with respect to terminology that confront family mediators, especially in the family law context. It may nonetheless have broader applicability in some instances.
This response does not purport to be an exhaustive response to the discussion paper, nor does it propose to address in any methodical manner the specific questions raised in that paper. In some respects AFMA concurs with dilemmas raised, and endorses some of the solutions proposed by NADRAC.
Confusion in Family Law
Since the commencement of the Family Law Reform Act 1995 (Commonwealth) what was formerly know as “ADR” has, in the Family Law context, been generally referred to as “PDR”. PDR has been used to refer to a broad range of processes, from therapeutic counselling and transformative mediation to Court-based conciliation conferencing and arbitration.
In each case, the precise nature of the intervention has varied not only from one process to another, but in many cases from one practitioner to another engaged in ostensibly, as far as the nomenclature of the process is concerned at least, the same intervention. For example, “mediation” has been used to describe non-directive, emotionally oriented dispute resolution practices conducted by social science-trained practitioners in the community sector where the disputants have been the main protagonists. At the other extreme, it has also been used in reference to extremely directive, highly legalistic and technical processes conducted by private legal practitioners where the disputants have not had anything more than peripheral involvement. There are of course numerous variants in between. Thus it seems “mediation” has become something of a catch all term, often used interchangeably with “PDR”, “counselling” or “conciliation”, depending on the context.
A good example is the practice in recent years of the Family Court of Australia in referring to all its non-judicial functions, whatever their nature, as “mediation”. This is regardless of the fact that it engages in a broad range of pre-determinative functions, few (if any) of which are actually “mediation” either in the popular sense, as referred to in the now rich literature on mediation (both Australian and internationally) or as defined by NADRAC. To confuse matters further, the Federal Magistrates Service, which does make a distinction in its referrals to the community sector between “mediation” and “counselling”, seeks in referring for “counselling” a process approximating what the Family Court (via the Commonwealth Department of Family & Community Services) outsources as “conciliation”. (We will not elaborate on this further; doubtless NADRAC is well aware of these developments.)
Consequences of confusion
These phenomena have given rise to a range of difficulties to many practitioners, and in our view (based on anecdotal discussions with clients) create an impossible dilemma for most disputants seeking non-litigious dispute resolution to inform themselves of and choose from the variety of services available.
For practitioners, the confused and imprecise usage of terms such as “mediation” gives rise to a range of difficulties, which include:
Difficulty in effectively promoting “mediation” or enhancing public understanding as to its merits in an environment where the term is so often used to describe such a broad range of activities.
Confusion on the part of (potential) service users as to expectations. This places an added burden on practitioners to not only be clear about the nature of the process(es) they may offer, but to dispel prevailing myths which may otherwise serve to undermine the effectiveness of the intervention.
Confusion as to prior interventions in which a presenting couple have been involved. Particularly those who have had involvement with legal process are often unable to articulate what they have attempted, beyond the label “mediation”, “counselling” etc. It would appear that potential clients often dismiss “mediation” as something that has previously failed to resolve their dispute, even though their experience, on further questioning, has often been of something quite different (eg a Court-based conciliation conference).
Creation of a climate of lack of trust of professionals in the field.
Confusion amongst referrers as to what services are provided by whom, leading to mistrust and a reluctance to refer.
The difficulties for users or potential users of dispute resolution services would appear to be obvious.
The family law ADR/PDR field in Australia has spent the last decade or more actively promoting public understanding and acceptance of mediation as a genuine and often preferred mode of conflict resolution for separating couples. Its advantages over litigation are well documented. This work has been supported and supplemented by Government. More specifically, since 1996 a great deal of attention has been devoted to promoting PDR services as a first port of call for separating couples. This would appear to be a prime concern of the Family Law Pathways Advisory Group, amongst others.
Allowing the current rife confusion to persist can only serve to undermine this work.
In many respects the question of endorsed terms for ADR processes in Australia cuts across the issues of standards, accreditation and training of practitioners. Clearly standards of practice must be guided by clear understandings of what different forms of practice are and involve. Likewise terminology must reflect the reality of practice. We note concerns about standards and accreditation are being dealt with by NADRAC and are clearly beyond the scope of this response. It is worth observing nonetheless that the simultaneous treatment of these issues is opportune.
Clarity without restricting practice
There is an inevitable tension in generating terminology sufficiently clear to overcome the confusion outlined above, and at the same time permit and promote a responsiveness and flexibility in practice so as to best serve users (and their children) and encourage thoughtful and resilient agreements. The very flexibility that AFMA believes must be preserved can easily serve to undermine the clarity that we feel is necessary.
For example mediation in family law children’s matters may well be best addressed by offering a facilitative, thoughtful, child-inclusive approach giving rise to child-centred arrangements in some cases. Yet in others the active promotion of the “best interests” of children (as mandated by the Family Law Act) may require a practitioner to adopt a far more directive, informative style. The former might be loosely considered “mediation” in accordance with the definitions in the NADRAC Definitions Paper, and the latter “conciliation”. Yet elements of both forms of practice must be able to be adopted as appropriate, and in the interests of seamless service delivery without the need for recontracting with clients to offer an ostensibly different service.
One way of achieving this might be to adopt a multi-tiered terminological system, representing a combination of both generic and specific terms. How these are then used, in both the public and professional arenas constitutes the real challenge.
“PDR” is currently used as a fairly generic, term to describe a wide range of possible interventions in the family law context. That of itself does not constitute a difficulty, so long as all stakeholders are aware of its genericism and that it encompasses a range of different processes. Accurate, clear and differentiating terminology at the specific level is more complex. Clearly the profession has now outgrown the traditional distinctions made between “counselling”, “mediation” and “conciliation” etc, yet clear and consistent distinctions are vital not just for regulatory purposes but to avoid a great many of the current problems described above.
Perhaps an effective manner of achieving this might be for a more descriptive series of specific terms, such as “family law child-related mediation” as distinct from “family law child-inclusive mediation”, and “family law property mediation” as opposed to “family law property conciliation” or “family law settlement conference. Doubtless this approach could potentially give rise to a string of new complications, such as confusing those not familiar with the distinctions, and how to refer to processes which might still offer a blend of practices (for example, where both child-related mediation and property-related conciliation are used). But at least the opportunity would exist for the promotion of clear distinctions in an integrated manner.
An obvious concern for government-funded service providers would be for a definitional system allowing broad-based funding (eg for “family law PDR services”) and then permitting the individual organisations and/or practitioners determine the most appropriate intervention(s) in each case.
AFMA is pleased to have had this opportunity to contribute to the important debate raised in the discussion paper. It endorses the initiative of NADRAC in putting the issues squarely on the ADR agenda in Australia and making a serious attempt to grapple with the shortcomings of the current laisse-fare and inconsistent approach to process terminology in ADR that are ever-apparent to practitioners in the field.
Family Mediation Centre
Alternative Dispute Resolution (ADR) terminology and standards are inextricably linked. Given our strong commitment to ADR standards, we see the debate around ADR terminology as critical. Furthermore, definitions of terminology are seen to be more appropriate than descriptions. From our experience in family law, the NADRAC (National Alternative Dispute Resolution Advisory Council) definitions and distinctions between, in particular, mediation and conciliation have been helpful and important, and should be maintained.
Mediation and Conciliation – the FMC experience
The Family Mediation Centre (FMC) has provided mediation services in family law, and with parents/adolescents, since 1985. We have also offered a small conciliation service in property matters, through mediators who were also qualified legal practitioners.
In 2001, we successfully tendered for the provision of conciliation services in children’s matters. The tender specification and our response followed the NADRAC definition of conciliation. The fact that this terminology was not reflected in the Family Law Act 1975 led to extended discussions with the Attorney-General’s Department, an interim resolution, and a recognition that amendments to the legislation are required.
Nevertheless, we have endeavoured to be faithful to both the spirit and the letter of the NADRAC definitions, and the distinction between mediation and conciliation, which we see as related but different.
In practice, a generic, individual intake process is offered to all clients, during which an assessment is made as to whether ADR is appropriate, and if so, what particular form of ADR. The family law ADR options at FMC are now mediation (children and/or property), conciliation (children), or conciliation (property). The essential differences between mediation and conciliation are explained to clients, usually at intake, and are confirmed in writing before the formal process commences. Where mediation is involved, the documentation required under Regulation 63 is forwarded in advance. Where conciliation is involved, an Agreement to Conciliate is forwarded. In each case, clients give their informed consent to the particular form of ADR in which they are choosing to engage.
Leaving aside the need for the organisation to meet its contractual funding and reporting requirements, our rationale for maintaining a distinction between mediation and conciliation is at least twofold.
Clarity – we accept the distinction between these two ADR processes, as defined by NADRAC, and are not proposing any essential change. Each process, as defined, provides direction and boundaries, and therefore clarity, both for the third party/ies, and for the parties in dispute.
This is important before, during and after the process, so that, as far as possible, expectations can be clarified, clients can give informed consent to the particular form of ADR in which they are choosing to participate, the process itself can flow more easily, and complaints based on misunderstandings of the process can be minimised.
Empowerment – at FMC, the commitment to mediation, and to the empowering dimension of mediation, has a proud history. Mediation was, and is, seen as a particularly empowering approach to dispute resolution, where the parties retain control over, and responsibility for, the content of the dispute. Any blurring of the mediation/conciliation distinction will allow a stronger, advisory role for the third party, and inevitably detract from the ownership of the conflict and its outcome, by the parties in dispute.
With the more recent introduction of conciliation services, particularly in children’s matters, this commitment has been tested. The legislative difficulties have already been mentioned. Additional training has been required, both initial and ongoing, to support conciliators in their advisory roles.
It has also been argued that many parties facing the crisis and stress of separation are looking for solutions, certainty, and therefore advice, and are not too concerned about empowerment. However, even accepting this position at face value does not remove the value of maintaining a distinction between mediation and conciliation. It may mean that mediation is used less frequently. The choice for the parties, however, remains.
Standards and Definitions
More broadly, there is an essential connection between ADR terminology and standards. Without clear and consistent language it is difficult to see how standards could be agreed, let alone implemented, nor how the hopes of NADRAC to “build consistency in the quality of ADR practice”, through this Discussion Paper, could be realised.
Practitioners need to clearly understand the particular ADR process which they are offering. Furthermore, as outlined in ‘A Framework for ADR Standards’ (NADRAC, 2001), service providers and practitioners have an obligation both “to enable parties to make informed choices about the extent and nature of their participation in the (ADR) process, and … to determine the appropriateness of the process” (pp. 98, 99).
Referring bodies and individuals including the judiciary, legal practitioners, other professionals and members of the public, also need clarity.
Conversely, the prospect of parties having to decide not only where to go to resolve their dispute, but the particular form of ADR, which may vary according to the providers, is unnecessary and probably irresponsible.
In this context, our clear preference is for the use of definitions within the terminology, rather than descriptions. As the Discussion Paper indicates, definitions attempt “to give precise meaning and to place clear boundaries around the particular ADR process in question”. With definitions, it is possible to ‘test compliance’, an option with which we have no difficulty, given our commitment to the implementation of standards within ADR.
Classification under the broader categories of ADR (facilitative, advisory and determinative) may be of secondary importance in practice. However, given that the conciliator ‘may make suggestions for terms of settlement (and) give expert advice …’, and given that the provision of such advice is a primary distinguishing characteristic, it seems to make sense to classify conciliation under ‘advisory’ rather than ‘facilitative’, as is the case at present.
Funding and Reporting Requirements
At present, funding for conciliation is separated from funding for mediation. There is a strong argument that funding be collapsed under a generic ADR (or PDR) program heading. Whether or not this occurs, funding arrangements are clearly quite different from debates around ADR terminology and practice.
In relation to reporting requirements, we are obliged to report separately on mediation and conciliation (children), to both the Department of Family and Community Services (through FaCSLink), and the Attorney-General’s Department.
Aside from the intrinsic advantage associated with the clear and consistent use of language in ADR, mentioned above, the requirement to report separately on mediation and conciliation within family law has added an external discipline which has probably been helpful. There are arguments for maintaining this discipline. Not only are funding bodies informed regarding the use of public monies, but data which demonstrates statistical trends within different forms of ADR is also important for educators, researchers and the ADR field itself.
Law Institute of Victoria
“We need to be able to define and describe ADR processes with some consistency. In the process we must be careful that we do not constrain the creativity and innovation that have made ADR services so effective and popular.”
(The Hon. Daryl Williams, Attorney General1)
The Law Institute generally endorses NADRAC’s approach towards consistency and quality in Alternative Dispute Resolution. Current literature and anecdotal discussion suggests that hundreds (if not thousands) of different practices exist in Australia under the name of “mediation” or “ADR”. As a result, finding a balance between consistency and diversity is likely to be a challenge for us for many years to come.
2. The Law Institute particularly supports the following moves set out in the NADRAC paper:
Building consistency in the quality of ADR practice;
Supporting responsible innovation, flexibility and creativity in ADR practice;
Producing accurate information about ADR practice;
Developing realistic expectations about ADR processes;
Increasing knowledge and building confidence in ADR systems and processes generally amongst all consumers and potential consumers of ADR services;
Helping Courts and other referring or mandating agencies to match appropriate dispute resolution processes to specific disputes and different parties;
Developing a common understanding between service providers and practitioners about ADR practices and standards.
3. Before addressing the specific questions raised in the discussion paper, it may be helpful for us to set out some of the presumptions upon which our answers are based.
People who practice a particular sort of mediation or ADR are often of the view that the way it is practised in their segment of the market is the only correct way.
Practitioners in a particular segment of the market are often unaware of what their colleagues in the same market segment are doing.
Practitioners in a particular segment of the market are often unaware of what practitioners in other market segments are doing.
As a result, there is significant confusion and discrepancy in the various market places and between practitioners.
For a variety of reasons, there are also significant differences of opinion amongst academics in Australia and overseas on a variety of fundamental ADR issues.
There are also significant differences of understanding and opinion amongst those judges called upon to adjudicate subsequently in cases where mediation or another ADR process has played some role.
There are also significant differences of opinion amongst teachers of mediation and ADR practices.
It is therefore hardly surprising that there is significant confusion by consumers.
Whether we achieve it by definition or description, we should be aiming for common understandings of the things we think we do understand, and common recognition of the things we do not understand.
This submission does not purport to be definitive. Quite the opposite. Whatever jargon we use, our members who have contributed to this submission have found the process of dealing with the issues in the NADRAC Terminology Paper very challenging and time consuming. We have reached the primary view put forward in this submission after many hours of discussion and thought, yet we still do not consider it to be “fixed in stone”. Its main contributors remain flexible and open to further discussion. As you will see, at the end of this submission we have already included some alternative views from different members. Although this is not normally the Law Institute’s practice, it is essential in this case since we believe strongly that further discussion about the various options is essential.
If the general approach used in this submission is accepted, then a lot of further detailed work will need to be done to get consistency in approach at both the headline level and also at the level of the individual case.
“ADR” One possibility is that “ADR” should be seen as a description or process name in its own right.
“ADR” should not be seen as an abbreviation for any of the words suggested at pages 8 to 11 (where the Discussion Paper discusses the “A”, “D” and “R” of “ADR” under the topic “3.1 Umbrella Terms”).
The suggestion is that “ADR” be used as an umbrella term to cover all activities undertaken in the field. It should be regarded as any dispute resolving process other than judicial determination. As such, it includes all processes, ranging from facilitation to arbitration, where an ADR practitioner:
Assists parties to a controversy, dispute or conflict to define / discuss / better understand and / or resolve their issues;
Assists parties to prevent or manage their own dispute (or conflict) without judicial and / or other external assistance.
ADR would therefore include the following processes enumerated in the Glossary to the Discussion Paper:
advisory ADR processes
Case presentation (or Mini-trial).
Combined or hybrid ADR processes
decision-making for one (DMO)
determinative ADR processes
determinative case appraisal
early neutral evaluation
facilitative ADR processes
fast track arbitration
judicial dispute resolution(JDR)
mini - trial
primary dispute resolution(PDR)
senior executive appraisal
(“DRP”) The Law Institute suggests that some new jargon be adopted to cover:
what is now understood as “ADR” and, as a separate category of activities
DRP processes conducted in the various courts and statutory tribunal adjudication systems in Australia (including what the Discussion Paper calls “quasi-judicial bodies” at page 8). Colloquially most of these are commonly referred to as litigation.
(Special attention is required for ADR processes, which are part of Court and Tribunal adjudicative systems.)
As far as possible, definitions should be avoided and descriptions should be used for ADR terminology. Many of the expressions in the Discussion Paper’s glossary are definitions and we suggest that they be replaced with descriptions. Alternatively, notwithstanding that the jargon is expressed as definitions, we suggest that we commence to see the jargon as descriptive and not prescriptive.
In the Law Institute’s view, it is desirable:
to have terms that encompass all processes currently considered to be ADR processes; and
to have terms that encompass ADR and judicial determinative processes.
We suggest that a common and simple language for ADR be developed. The same terminology should be used for most, or all, audiences. Unnecessarily complex language and jargon should be avoided in keeping with the trend across many professional sectors (including the legal and financial communities) towards Plain English usage.
A key issue is for all ADR practitioners to be encouraged, on grounds of transparency, to offer an adequate description of themselves and their ADR style and process, using generally accepted terminology, for consumers of services and to apply them in a consistent fashion,
“I am a QC and I have been a barrister for 30 years. My specialties are in the areas of building and construction law and commercial disputes. I have mediated over 500 disputes since 1992. I prefer to use either or both of the settlement or evaluative mediation techniques. When I talk about evaluate mediation I mean … When I talk about settlement mediation I mean … The processes I use commence with …”
“I am a lawyer and an accountant. I have been an ADR practitioner and consultant for more than 15 years. I offer a range of ADR processes designed to solve parties' problems. My repertoire includes:
arbitration and expert determination - business style
mediation - using facilitative, evaluative or settlement processes
private judging and case appraisal
independent fact-finding and neutral intervention
negotiation preparation and assistance
strategic and business planning
family business conflict workouts (including mediation, problem solving and mentoring to sensitively and constructively to assist, for example, succession planning)
“More detail of my services can be found at www.solveyourproblems.com.au, or give me a ring on 1800 999 888. At my web address I set out in descriptive language the processes I offer and what I mean when I use the shorthand language set out in this brief summary.”
"I have conducted over 100 mediations in the commercial list at VCAT, dealing mainly with smaller commercial disputes. My mediations typically take between 2 and 4 hours. I use the settlement mediation approach which means I………(here a description of the process is set out).”
“I live and work in the Latrobe Valley. Most of the work I do as a mediator involves personal injury claims. I practice the evaluative model, which means I……(here a description of the process is set out).”
“I have been mediating a range of commercial and property matters, as an independent professional, for over 10 years. Most of my mediations take between six and ten hours. I prefer to facilitate communications and negotiations between the parties to help them reach their own voluntary agreement regarding their dispute. My process helps each party to understand and appreciate the views, perceptions, interests and prejudices of the other party(s). I also help parties to understand the legal position adopted by the other party. If required, I provide advice to the parties (separately, or in joint sessions) in relation to their negotiations. I aim to be neutral, impartial and independent.
“I usually conduct private "interview" sessions with each party before the first joint session. My process is very flexible and sometimes involves " shuttle negotiation". I aim to educate parties on how to negotiate when they are in joint session.”
The Law Institute believes that many of the terminology problems and issues canvassed in the Paper will diminish significantly if ADR practitioners adopt standardised descriptions of their processes.
When practitioners describe their processes they should be encouraged to describe their processes, in part, according to some of the matrix of features and characteristics, including (not in order of priority):
level of formality (Discussion Paper page 12);
structure of process ( page 13);
statutory requirements and constraints ( page 13);
whether participation is compulsory or consensual (page 13);
status of outcomes (ie: legal effect etc) ( page 13);
method and style for communication flows (page 13);
mode of service delivery (page 13);
types of disputes handled (page 13);
practitioner independence, neutrality, impartiality;
relative level and style of intervention(s) to be expected from the practitioner (low level intervention versus high level intervention on both process and substance);
timing expectations and time available;
flexibility of process;
issues covered - past, current, future; defined / expanded etc;
sole DR practitioner or co-practitioners;
physical location and facilities for DR process;
cooling off period;
whether DR practitioner advises / suggests solutions, or not;
extent to which processes are without prejudice;
multiple meetings, or single meetings;
private meetings during process, or no private meetings;
numbers of parties that can be involved;
preparation and effect of heads of agreement;
use of visual aids (eg: flipcharts and whiteboards);
process flexibility (eg: practitioner can change hats during the process - med-arb);
the DR practitioner's professional expertise; and
whether the process is based on
(This list is a guide only and does not purport to be comprehensive)
An Alternative View
As we indicated in our introductory paragraphs, members of our ADR committee (Litigation Lawyers Section) have spent many hours discussing and considering possible answers to the ADR terminology question. Nevertheless we have been unable to reach complete consensus. This is not because members hold strongly opposing views so much as because they agree on the need for flexibility in any solution. They are therefore unwilling to formulate a black and white answer to questions but have preferred to express views on the basis of ongoing dialogue about the issues raised.
The numbered paragraphs below give an example of one member’s view that involves some common ground with the primary view set out in this submission but raises further issues for consideration by NADRAC.
You will see that much of the underlying reasoning is the same. The basis is that providers and consumers of dispute resolution services require mutual understanding and agreement as to contemplated processes and expected outcomes, both tangible and intangible. Shared conceptual understanding is derived, in large part, from the common starting point of a shared language base. However, from those same roots, the following alternative recommendations are grown:
The term “Dispute Resolution” is a plain English expression and should not be appropriated to technical jargon.
We should drop the “A” out of “ADR” and start using the term “Dispute Resolution” to include all processes consciously used to resolve disputes or differences – from unassisted negotiations and problem solving discussions between two people to the most formal High Court proceedings. All are connected by the same purpose.
We should apply and limit definitions to major generic groups of activities then, within the broad categories so defined. We should use detailed descriptions in plain English as the basis for communications between providers and consumers that will provide full understanding of the how, what, when, where and why of the proposed process. The diagram attached as "Appendix A" gives examples of elements that could or should be included in descriptions.
“Mediation”, as the most widely used (and abused?) generic term for assisted, non-decisional dispute resolution, should become the catch-all term for this area of activity (as per Appendix A). It should be sub-categorised into just three functionally distinct processes, covering the range from neutral facilitation to highly directive process. This is adequate to cover all eventualities, avoids unnecessary complexity and strengthens “Mediation” per se.
The term “Conciliation” should be dropped from all but statutory applications. All current forms of usage can be accommodated in the proposed re-defining of “Mediation” (see paragraph 4 above).
Hybrid and combined processes should be included in definitions and also require additional, careful description.
The pursuit of standard terminology in the dispute resolution field has been a major quest and a continuing diversion for many involved in the dispute resolution community. The Discussion Paper itself is evidence of this pursuit. Much time has been spent debating the relative merits of the different terms and processes and the discussions have often led to new ideas, concepts and perspectives that may not have been obtained otherwise.
Too much certainty can create sterility – an unattractive prospect during these pioneer days for the field. Our members are very keen that open dialogue on these issues should continue. We would welcome the opportunity to discuss this submission and the issues generally with you further. You may like to attend one of our section meetings, or we would be happy to arrange for a representative or two to meet with you separately.