Question Two - How should the needs of diverse groups be taken into account in developing terminology for ADR?
Networking with ongoing consultations, discussions, meetings is essential, with special attention to groups that are marginalised and unprovided for. Please note that as Australia will demographically have similar ageing problems as the UK and Europe. NADRAC might well learn from British work in this area.
The discussion paper points out that ADR terms ‘should ultimately serve the interests of those using ADR services’ (at 3).
It suggests (at 3) three options to respond or cater to the needs of different audiences:
Develop different sets of terms for different audiences.
Educate users of ADR services about the meaning of technical terms.
Develop a common and simple language for ADR, which is useful for most or all audiences.
The second and third options (which, for reasons mentioned below, should be treated together) would be ideal, if we lived in an ideal world. Are these options achievable? More importantly, who would they be achieved by? The discussion paper considers this in 4.5. It is an issue that needs to be addressed.
As mentioned, the second and third options must be treated as two parts of the one activity and would occur in reverse order. It would be necessary first, to develop a common and simple language, and second, to educate users about the meaning of ‘technical terms’ for no matter how simple and common the terms used, they would have different connotations and shades of meaning (this is true of all/most words in the English language).
The reality is that we do not live in an ideal world. The first option is the more realistic and feasible. However, the issue of ‘who’ would develop different sets of terms for different audiences needs to be considered.
If the first option is pursued, it would then be up to those using ADR services to ‘find out how terms are used in each particular case’ (at 6 of the discussion paper).
A flexible, common and simple language would benefit all groups.
The Law Institute believes that a common and simple language for ADR should be developed. The same terminology should be appropriate for most or all audiences. Unnecessarily complex language and jargon should be avoided. This is in keeping with the trend across many professional sectors (including the legal and financial communities) towards Plain English usage, which the Law Institute strongly supports.
Canadian studies have identified a conciliatory to adversarial continuum in the practice of law.3 Moore advances that the processes for resolving conflict form a continuum, which at one extreme has avoidance and develops through direct dealings by the parties, to assistance by a third party neutral and continues through processes of increased coercion, into violence at the other extreme. 4 The terminology of NADRAC defined Dispute Resolution Processes tend to be towards the middle ground of the Moore Continuum.
The concept of a continuum may provide a useful tool for solicitors and others to identify and define ADR processes without the need for rigid definition. Rigid definition may present difficulty for non-lawyers and lawyers alike. The continuum assists service providers to rate their product and facilitates a selection process, which marries the intervention to the presenting dispute. At the same time this approach recognises the importance of individual style and appropriate lateral and flexible thinking by neutrals who deliver the myriad of ADR products in diverse models. This would also be helpful for solicitors and other neutrals working in interdisciplinary teams.
The NSW Law Society model of mediation might be taken to demonstrate an example of this approach. Generally solicitors in our State who practice mediation will be expected to adopt the definition of mediation approved by the Law Society. Within the pool of solicitor/mediators the style of practice will vary greatly. One mediator ‘A” with a very directive style might be determined at 6.1 on the continuum whereas another “B” who is more facilitative in style would be determined at, say 5.
Of course, for different disputes the process might differ, that is to say, for example in a family dispute the ranking could be 5 and for a commercial dispute the ranking might be 6.1 for mediator “A”. The criteria for ranking is the degree of coercion within the process, and of course the challenge to NADRAC is to determine the process of classification and the benchmarks to be applied.
Question Three - What, if any, problems, complaints or legal issues have arisen (or may arise) about the inconsistent use of ADR terms?
Confront problems as already happens in medical/psychiatric/social terminology when conditions are variously interpreted. Avoid bureaucratic in-fighting.
The discussion paper has touched upon most of the problems. The main legal issues are:
whether or not mediators are covered by immunity provisions if their conduct is not in accordance with a particular definition;
whether or not mediators are covered by indemnity insurance of particular organisations (eg Law Societies) and institutions (eg the Legal Aid Office) if their conduct is not in accordance with definitions adopted by those organisations and institutions.
The main problem/complaint is the consumer/user complaint – I didn’t get what I expected or what I wanted!
Law Society of SA
The Family Court labels all counselling as “mediation”. An overly wide description of ADR material is applied which undermines the integrity of the process. A lack of support for the process of mediation leads to uncertainty and diminishes the standing of the process.