Adr terminology Responses to nadrac discussion Paper



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NSW Law Society


Most criminal justice statutory processes do not use the term 'ADR’, and are designed to empower those most affected by the harm caused by the crime to decide how this harm can be addressed. The terms to which paper refers (community conferencing, family group conferencing, and so on) are now widely used and generally accepted as accurate descriptions of a process that is neither mediation nor counselling.

Question Seventeen - What are the implications of emerging technologies for terms used in ADR?

Yvonne Craig

We should be open to new terms, see their consonance/resonance with ADR, incorporate what’s helpful, always being a model of undogmatic peer learning, discourse and disputation (NB. Technologies of ‘medieval disputation’ in theology). All new genuine and authentic knowledge can only be enriching to ADR


LEADR


In terms of mediation, on-line mediation may be an impediment to the parties experiencing the full effects of mediation, namely voicing, ventilating and a sense of catharsis that can come from face to face mediation.

On the other hand, the on-line environment can also act as a shield to emotions which may or (may not) help progress the dispute resolution process.

Also a different set of communication skills are required for on-line communication and it would be difficult to assess trust, neutrality, respect etc without the advantage of assessing the body language of the decision- maker, mediator or opposing party.

Jargon words such as the term “fourth party” should be avoided.

There is a greater risk of misunderstanding arising out of unintended interpretations of written communications (eg e-mails) by working on-line.

Law Institute of Victoria

There is increasing interest in the use of communication technologies to assist in communicating – teleconferencing, videoconferencing, internet access and so on. These are natural advances.


The technology is simply a delivery mechanism and there is every reason for ADR practitioners to embrace and utilise relevant technologies if their consumers want, or need, to use it.
Unless the ADR community gets its own house in order as regards defining its processes clearly, promoters of new technology may cause increased confusion in the field by using different labels for technology-oriented versions of current services.
We should develop standard terminology to aid the development of technology-enhanced ADR processes, allowing the technological development effort to be directed solely at the delivery mechanisms.

NSW Law Society

Information technology must impact upon Dispute Resolution as with other aspects of modern life. At this time the computer, video conferencing and telecommunication are important tools for ADR.


Question Eighteen - How might future developments in ADR affect terminology?

Yvonne Craig

ADR, vis-a-vis above responses, should be equally involved in sharing its insights gained from new development with those who work in evolving terminology.


LEADR

Specialist and hybrid areas of ADR may evolve in the future, and as they evolve rather than create jargon terms it would be best to keep to the clearest plain English terms available.


When considering terminology, both present and future, plain English descriptors are preferable.

Law Institute of Victoria

As ADR processes are more widely used, new processes (both simple and complex) will be developed. If our fundamental terminology is sufficiently clear and generic at the outset, new processes will be sub-sets of mainstream processes and any new terminology required will only be incremental.


However, if our fundamental terminology is either inadequate or too prescriptive, it is conceivable that new processes will require completely new terminology.
The Law Institute suggests that the proposed descriptive / categorisation matrix approach can provide the accommodating approach necessary to avoid future problems.

Question Nineteen - In what circumstances should ADR processes be defined or described in a consistent fashion, and in what circumstances should different descriptions or definitions be used?

Yvonne Craig

Whenever the contacting parties to particular ADR discuss and agree the aims, parameters and conditions of the process they choose. This may be the result of individual, group or community decision-making


LEADR

ADR processes should be defined or described in a consistent fashion in all circumstances. Definitions may facilitate communication by providing a common language. However, specific definitions do not prescribe specific practice. The practice of ADR processes will always be dynamic. The best practice will be adaptive and flexible, often combining elements of various specific processes.


Compliance cannot or should not be tested against the definition of an ADR process, nor should definitions be adopted if the consequence would be that mediators might not be covered by immunity provisions if their conduct of the process is not in accordance with a relevant definition.
Compliance should be tested only against competency standards. Definitions should have only limited use in relation to compliance.
This does not negate the fact that definitions are important and desirable.

Law Institute of Victoria

Please see the comments in the introductory paragraphs to this submission.


NSW Law Society

As ADR evolves its structure will continue to be modified. This can cause conflict and dysfunction. As ADR finds a place in institutional structures such as Courts there needs to be a clear link between the redirection of clients and the purpose for which they came to the institution to resolve the dispute. New knowledge must be acquired. This will extend to skills and attitudes, understanding of a range of processes of dispute resolution, and rights and responsibilities. There needs to be a reference point against which to measure performance. In these circumstances tasks and responsibilities need to be clearly defined. Once the change to new methods is in place the dispute resolvers will identify with the changes, act autonomously and look for continual improvement.


Word association may help to form new attitudes and new language may help oust attitudes and objectives which are no longer desirable and help to reorient thinking. For these reasons it should be open to service providers to state their own particular vision of process. By identifying that process on the Moore continuum, disputants will find a reference point to evaluate the degree of persuasive influence of the dispute resolver they will encounter.

Question Twenty - How generic or specific should ADR terms be?

Yvonne Craig

See (19). For decision-making on this issue, the principle should be that those who wish to provide the service should discuss and agree which ADR terms and processes they will regard as generic on specific in the cost before them


LEADR

We refer to what is said in respect to Question 1 about a combination of definitions and descriptions.


Law Society of SA


The descriptions should be as generic and consistent as possible. It is important that the parties define the process they are embarking on.

Federal Magistrates Service

See concerns raised above about the different uses of the term ‘mediation’ across different service providers.


Law Institute of Victoria

Please see the comments in the introductory paragraphs to this submission. {See page 21]


NSW Law Society

By generating terms which recognise key variables a profession will emerge that develops models of practice and personal identity. Development of a list of definitions that addresses all forms of practice clearly and unambiguously, will be impossible. Presumably there will be a broad range of perceptions and understanding of any words which attempt to compartmentalise ADR practice. For these reasons generic definitions will be of greater use.


As mentioned in our response to Q. 5 above, ADR or Primary Dispute Resolution or whatever it is called could be embodied in National uniform legislation passed by the Commonwealth and State Governments setting out descriptions of PDR processes and requiring that they be used before starting civil court proceedings in Australia. NADRAC could propose this to the Australian Government as a means of promoting uniform terminology in Australia.

Question Twenty One - Which common ADR terms should be developed (a) across all areas of ADR practice; (b) at the sector level and (c) by individual ADR service providers?

Yvonne Craig

Surely it is values and principles which are common? ie. impartiality, confidentiality, equity, etc. Otherwise a single sheet of terms in current terms in current, various usage can be made available to all parties showing the wide variety of interpretations which people/authorities have. This functions as educative for participants, education is an important aspect of ADR, which aims ultimately to encourage people to manage their own disputes when possible. Hearing of the multiple ways in which this can be done can assist people to initiate towards their own ways of approaching conflict. Such information may assist in the future if not in any immediate dispute


LEADR

The development of common ADR terms is probably best confined to those terms which are relevant to all areas of ADR practice. ADR terms which are used only at the sector level or by individual providers will be best developed at those respective levels. A central source of terminology be it national or only at sector level, could help ensure consistency in the relevant areas. The usefulness of definitions will not be diminished by the fact that there may be variant usage at different levels and by individual ADR service providers. The point of the exercise is not to eliminate difference but to broaden and clarify the common ground. The usefulness of centrally published definitions will be to provide a common language across all relevant areas of ADR practice.


Law Society of SA


Usage develops function, and not vice versa.

Law Institute of Victoria

Please see the comments elsewhere in this submission. In addition, the Law Institute takes the view that:




  1. Generic terms should be applicable across all areas of practice;




  1. Specific sectors (such as courts and tribunals, family law, industrial relations) should develop standard terminology appropriate to their needs that clearly identifies its specific application; and




  1. Individual providers should be encouraged to use common law terms to describe any specialised processes or services they may offer.

In all cases, plain English and common sense should prevail.


NSW Law Society

(a)


  • The goals and objectives of ADR.

(b)


The ethical framework for ADR practitioners

The preferred practice guidelines for that sector e.g. co-mediation in Family Law


(c)

  • The model or models provided

  • The qualifications of the practitioner

  • Personal qualities of the practitioner

Question Twenty Two - What should be the focus of attention in developing consistency in ADR terms: processes, elements in processes, roles of practitioners, services or recording/reporting?

Yvonne Craig

It will be noted that I give little energy to trying to tame variety and pluralism which is particularly valuable in the field of ADR, when all we need to enlarge our perspectives and tolerate differences. ‘Legal ADR’ has, of course, to use precise definitions and each jurisdiction/authority should publish clear, brief non-jargon statements of its terminology.


LEADR

The focus should be determined by what is essential to, and characteristic of, that process. In most ADR processes the elements or steps of the process vary widely between practitioners and between applications. In these circumstances, the focus of accurate terminology will be:




  • the role and responsibilities of the ADR practitioner; and

  • the service offered.

The elements or steps commonly involved in that process would then properly form part of an illustrative description which expands on the definition.


For example, mediation is characterised by
(a) the role of the mediator - a third party neutral; facilitative; non-determinative; non-advisory

(b) the service offered - the mediator assists the parties to negotiate in an endeavour to resolve their dispute.


The elements or steps involved in a mediation may involve the mediator assisting the parties, jointly or separately, to identify the disputed issues, develop options, consider alternatives and negotiate an agreement.
LEADR supports the endeavour to facilitate data collection by use of consistent terminology. To this end LEADR supports the development of operational terms such as those suggested in Section 4.4.

Federal Magistrates Service

The focus of attention should be on developing consistency in ADR processes. See discussion about the term ‘mediation’ above.


Law Institute of Victoria

The starting point for consistency should be to focus on the processes and their descriptions by the respective practitioners. Practitioners should therefore be encouraged to clearly describe the processes they adopt.


NSW Law Society

The focus of the profession of Dispute Resolvers should be to clarify terminology so that practitioners, clients, lawyers, service providers, governments and everyone else potentially to participate in ADR would know what they are talking about and can make accurate comparisons. All of the matters mentioned require consistent terminology. This is best done by a national code of descriptions. By embracing diversity rather than suppressing it, the profession will move in the same direction. Although the negative connotation is not advanced in the discussion paper, ambiguity will encourage change and development. Ambiguity will disappear as improved communication between the stakeholders reduces discrepancies. Education is a vital part of the process of encouraging the use of ADR to resolve disputes. It should be part of the primary and secondary school syllabus and should have a more prominent place in the educating and training of lawyers, teachers, and all professions generally.


Question Twenty Three - Where should ADR definitions or descriptions be found?

Yvonne Craig

NADRAC already does superb work in this area. Any service provided should give to all service inquiries a printed list of its aims, definitions and options etc


LEADR

ADR definitions and descriptions need to be readily accessible. When consensus has been arrived at as to their content all industry bodies should publicise them as the collective consensus of those involved. NADRAC and any industry peak body that might be formed could publicly acknowledge them. Modification of terminology needs to be easily achievable when consensus is arrived at. Statutory or regulatory structures are not supported.


Law Society of SA


They are found wherever they are used – it is impossible to impose them.

Law Institute of Victoria

As indicated elsewhere in this submission, definitions should be used as little as possible.


It is appropriate for descriptions to be found in:


  • Legislation

  • Regulations

  • Codes

  • Court and tribunal rules and information memoranda

  • Contracts

  • Australian standards

  • Public information and marketing materials generally

  • Institutional and provider websites

In the absence of a Uniform Mediation Act in Australia, descriptions developed and promulgated by a recognised body such as NADRAC are an excellent idea.


Whether or not we require a Uniform Mediation Act requires further study and consideration.
If dispute resolution processes are to be referred to in legislation or regulation there is a clear preference to see descriptive language being used.

NSW Law Society

These should be published by the institution or dispute resolver providing the service. As soon as possible a Uniform National Mediation or Primary Dispute Resolution Act should be passed in Australia. In the meantime Federal and State Acts Interpretation legislation could incorporate the NADRAC descriptions or definitions.


In criminal law restorative justice practices it may be useful to incorporate basic descriptions and relationships with formal court processes in legislation. (NSW has done this already through amendments to the Criminal Justice Procedures Act 1986, and in Part 5 of the Young Offenders Act 1997.)

Question Twenty Four - What alternative definitions or descriptions should be used for terms used in ADR (listed in the Glossary)?

Yvonne Craig

I like Appropriate DR, and Assisted DR


Law Institute of Victoria

Please see the comments in the introductory paragraphs to this submission.


NSW Law Society

The glossary is a comprehensive list of ADR models for those who wish to use it as a reference point. It should be regularly refreshed and reviewed.


Question Twenty Five - What terms are used in ADR, other than those described in the Glossary?

Yvonne Craig

An oblique response to this question: I have developed a model of Anti-Stress Mediation which I use in disputes between elderly people and staff, or between residents etc, in sheltered housing, care and nursing homes. It might be developed to be helpful in dealing with disputes involving people with mental health and some other forms of disability.


The great potential of mediation in peace building and healing lies in their being a model of continual learning, adaptability, adaptable growth, non-dogmatism, accessibility to all based on a service user and service provider partnership.
Question 26: What is Law?? Define it.... etc. Answer 1-25, as applied to law, not ADR.

Consumer Credit Legal Service Inc. and Consumer Law Centre Victoria


Any ADR terminology should include a definition of the commonly used term "Industry ADR". Industry ADR schemes have a number of characteristics which are unique to this type of ADR, and it is important that this is made clear. We suggest the definition should include something similar to the following:

Industry ADR: Industry specific ADR schemes deal with complaints and disputes between consumers (including some small business consumers) and a particular industry. Schemes are usually funded by the industry but governed by an equal number of industry and consumer representatives. Some schemes are required to meet standards established by ASIC. If the industry member and consumer do not reach agreement, most schemes have the power to make a determination. The determination is binding on the industry member, but not the consumer who can choose to accept or reject the determination. Depending on the scheme, the power to make the determination lies with an Ombudsman, panel or referee.

A definition of "Industry Ombudsman" should refer to the above definition.


LEADR

LEADR continues to favour the definition or description of ADR that excludes from its ambit all determinative processes. This is the only valid and useful distinction that can be drawn between categories of dispute resolution. The nature of the body dealing with the dispute viz. is it a tribunal established by the State or not, is of no intrinsic relevance. What is relevant and important and needs to be understood by the community is the nature of consensual dispute resolution with its focus on interests rather than rights. Arbitration or binding expert determination are conceptually different and must follow processes aimed at determining rights. LEADR recognises nonetheless that for many in Australia and overseas ADR simply means "non judicial resolution". The threshold for categorisation of anything as ADR would seem to be the existence of a dispute: so dispute prevention and therapeutic processes ought to be excluded.



Community mediation is a process in which the parties to a dispute, with the assistance of a neutral third party (the mediator), chosen from a panel representative of the community in general, identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. The mediator has no advisory or determinative role on the content of the dispute or the outcome ..., but many advise on or determine the process of mediation whereby resolution is attempted. (NADRAC's definitions Paper)
The definition of community mediation is not clear. Presumably what is sought to be conveyed is that the parties, not the mediator, are chosen from a panel representative of the community. What is a "panel representative of the community"?
The essential feature of a community mediation" is a mediation of community issues or a community dispute, ie. the disputing parties are not individuals in a private dispute but individuals or community groups disputing over issues which involve or impact on public interest. "A party ... chosen from a panel representative of the community in general" is not easily identified. In practice things are more ad hoc - the size, shape and nature of the individuals and groups participating in a community mediation varies widely.

Law Institute of Victoria

Please see the comments in the introductory paragraphs to this submission.



NSW Law Society


The NSW Workers Compensation commission has developed a model of Concilio-Arbitration. Many Law Society members are involved as dispute resolvers in delivering this service. The Commission could be approached to provide a definition of the model as it will affect a number of professionals and employees in this State.

1 VCAT Mediation Newsletter No. 6, November 2002.

2 Bordow,S and Gibson, Jane Evaluation of the Family Court Mediation Service. Research Report No. 12. Family Court of Australia Research and Evaluation Unit, 1994

3 Hotel, Carla & Brockman, Joan, The Conciliatory-Adversarial Continuum in Family Law Practice. Canadian Journal of Family Law. V12. N1. 1994

4 Moore, Christopher W. The Mediation Process: Practical Strategies for Resolving Conflict, San Francisco: Jossey Bass, 1989.

5 See Brenner, M et al, "What is "Transformative" Mediation?" (Aug, 2000) Australasian Dispute Resolution Journal 155, 155-56 for a full description of how transformative meditation works in practice.

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