Question One - Should ADR terms take the form of 'definitions' or 'descriptions'?
Descriptions because we are still on a learning curve in which flexible thinking and fluidity is useful.
The discussion paper does not make a clear distinction between ‘definitions’ and ‘descriptions’ (although the distinction is purportedly explained in Section 4.1 of the paper). The explanations are not adequate. Examples of definitions on the one hand and descriptions on the other may have helped make the distinction clearer.
This lack of clarity is driven home on reading the section of Professor Boulle’s text (Mediation: Principles Process Practice) dealing with ‘Approaches to defining mediation’, for he refers to ‘conceptualist definitions’ (such as Folberg and Taylor’s) and ‘descriptive definitions’ such as the following:
…a process of dispute resolution in which the disputants meet with the mediator to talk over and then attempt to settle their differences.” (M Roberts), quoted at 5, Mediation: Principles Process Practice.
If the explanations provided in Section 4.1 are considered sufficient, LEADR would prefer to see ‘descriptions’ used because this approach allows for diversity of practice (it is better to refer to ‘what takes place in the reality of a specific ADR process’) than to prescribe artificial, misleading and possibly even dangerously ‘clear boundaries around the particular ADR process in question’ (at 24, discussion paper).
A combination of both definitions and descriptions might be the preferred approach (suggested at 24 of the discussion paper). I assume a combination approach might be similar to that taken by Professor Boulle at 7-8 of his text, namely, provision of a value-free (but arguably superficial) definition emphasising/limited to the core features of mediation (assuming agreement as to the core features can be reached), with a description (or inventory) of some of the variable features of the process. The discussion paper provides a similar explanation of this approach, which is ‘to define a limited number of key terms where consistency and compliance are essential, but to describe other terms where diversity and flexibility are more important’ (at 24). The threshold issue will be: which terms are ‘key terms’?
Terms should be descriptive.
Federal Magistrates Service
The FMS has jurisdiction in family law and general federal law. The development of a common consistent language would ensure that all clients were receiving consistent information about the process to which they are referred. It would also mean that federal magistrates who sit in both family law and federal law jurisdictions understood the language and could be confident about the process clients were ordered to attend.
PDR and ADR services are provided to the FMS by the Family Court of Australia (FCoA), the Federal Court of Australia (FCA) and community based organisations (CBOs). All of these organisations deliver mediation services for the FMS. However, the term ‘mediation’ is not used consistently in those organisations.
There is some consistency in the process described by the word ‘mediation’ in the Federal Court and the community organisations. However, in January 2000 the Family Court re-named its counselling services ‘mediation’. The process followed in the Family Court is different from the process followed in the Federal Court and the community organisations. This has created confusion about the term ‘mediation’ in family law circles. From the perspective of the FMS, clients are referred to different processes that use the same term.
Further, the FMS is a purchaser of services from a number of different organisations. As public funds are used, public accountability is essential. This is difficult when different organisations deliver different services under the same umbrella term.
Therefore, clear definitions about PDR/ADR processes would ensure that the organisation is aware of the nature of the process to which it is referring clients and the nature of the service it is purchasing.
When it was purchasing services from CBOs the FMS undertook a tender process. The definitions in the NADRAC definitions paper were useful when answering queries from tenderers.
The Law Institute takes the view that only a very limited number of key terms should be defined, where consistency and compliance are essential. Where diversity and flexibility are important, it is better to have descriptive terms.
Where essential terms are drafted, it is important to avoid excluding matters that may be needed later.
Generally, plain English descriptions should be used.
As a society representing solicitors the NSW Law Society represents a variety of the interest groups referred to in 1.4 of the paper. Members include ADR practitioners, Court Officers, government policy makers and academics. At times solicitors will be the ultimate consumers of ADR. Practitioners also advocate for a variety of clients and have been described as “gatekeepers” in resolution of the disputes affecting their clients.12ADR will be valued for its potential to minimise legal costs, provide wins, expedite settlements, provide fair outcomes, empower the clients to maintain some control of their disputes and preserve relationships. Lawyers will not be in a position to assist clients in this regard if they do not develop a broad range of options for resolving disputes.
Traditional legal culture will value consistent and precise terminology. Nevertheless the diversity of needs within the Society’s membership is dictated by complex and overlapping interests within the group influenced by factors such as legislation, the culture of the geographic area or of a specific area of practice, personality, client base, composition of firm and degree of commitment to ADR.
The Society prefers “descriptions” rather than “definitions”
A “description” can be more flexible and not over-prescriptive. If it were over-prescriptive a definition of “mediation” might inhibit and even prohibit a minor variation in the mediation process because the mediation might then cease to be a mediation under the definition and lose the protection of, for example, confidentiality under S.19N or immunity under S.19M of the Family Law Act. The Society believes that the Mediation Regulations under the Family Law Act are over-prescriptive.