One of the core attributes of ADR is communication. Effective communication and mutual understanding are very difficult when participants have a different understanding of the meaning of the same word.
For example, parties to a mediation may expect to be involved in a settlement or evaluative mediation process, but the mediator may only practice therapeutic mediation. The parties may not get the process they want, or need or they may need to undergo an entirely different preparation to what was initially envisaged. The potential for dissatisfaction is considerable.
NADRAC recognises that solicitors and their clients experience confusion about the definitions and individual characteristics of dispute resolution processes. The confusion grows as legislation adopts varied definitions. The “water logic” underpinning ADR suggests that it is likely that hybrid and new processes will continue to emerge and find a place at different points along the continuum.
There is a tendency amongst solicitors and others to equate ADR with mediation alone. Mediation itself will vary with the personality style of the mediator and the nature of the dispute. Legislation is not consistent and where legislation calls for ADR Courts are often reluctant to refer matters to ADR process because of uncertainty of process and the style of practice.
On 6 February 2002 in a submission to the Federal Attorney General’s Department in response to the paper entitled “Raising the Standard: A Quality Framework for Primary Dispute Resolution under the Family Law Act 1975”, the Society’s President Kim Cull expressed the concern of Society members at the decision of the Family Court to use “Mediation” as a general term to cover counselling and mediation services provided by the Court. The Society stated in Section 4 of that submission that this was a retrograde step and should be immediately corrected as it would only confuse customers of the Court and Practitioners who may not know if the parties were attending for counselling or mediation – two entirely different processes. Since that time, the problem has been compounded because the generic term “mediation” now includes not only counselling and mediation but also “conciliation” in financial matters. The Society still believes that this decision of the Family Court is wrong and should be rectified as quickly as possible. It will cause confusion and may discourage the use of these three processes which are an essential part of Family Law.
As mentioned in our response to Question 1 above, the requirements set out for a private mediator and for the conduct of mediation under the Family Law Regulations 1984 are over-prescriptive. In the New South Wales Supreme Court Act and the District Court Act, the definition of “Mediation” is a general non-prescriptive description compared to the Family Law Regulations. That is a preferable way of dealing with it.
There is still a surprising level of confusion and misunderstanding of ADR processes amongst many lawyers particularly lawyers trained prior to 1980. Training in Dispute Resolution and negotiation should be given more attention in the education and practical training for lawyers. While ever the word “mediation” is used as a generic term to include “counselling”, “conciliation” and “mediation” practitioners and clients will continue to be confused and misled and this is counter-productive to the encouragement of the use of these processes.
The Law Society is aware of one complaint that a consumer made to the effect that the process he was a party to was not what he had expected or did not fit the description that it was given. It may well be that the process promoted by some mediators is really akin to expert evaluation. It may also be the case that the success of some former judges in marketing mediation implies that this is what some parties expect of mediation. The value of lateral thinking within the process is not always shared or understood by mediators and consumers.
NADRAC has been comprehensive in listing these.
The discussion paper deals with the benefits and problems of common terminology in a comprehensive manner.
However, one point that might be worth clarifying is this: the paper appears to use the terms ‘common’ and ‘consistent’ interchangeably. Is this the intention?
Does NADRAC intent the word ‘consistent’ to embrace:
Consistency between service providers?
Consistency over time?
Law Institute of Victoria
Please refer to the comments in our introductory paragraphs of this submission.
NSW Law Society
Your paper has adequately identified the arguments for and against consistent terminology.
Legal practice relies on the development of key relationships with individuals and groups of individuals whose understanding of ADR terminology will impact on the services offered and provided by solicitors within the context of their practice and professional and personal lives. Communication will be enhanced if there is a consistent terminology which can be evaluated and adopted for the purpose of clarity within particular transactions. At the same time flexibility and creativity should underlie the engagement with ADR. However within legal practice this concept will be at odds with the adversarial model of dispute resolution within which lawyers have been trained and assessed. For more lawyers to more readily engage in ADR there needs to be profound change which will completely transform the nature of the business which solicitors undertake. Consistent terminology will reduce resistance and indifference to change arising out of misunderstanding or fears of loss by risk taking. The education of young lawyers as “problem solvers” or “dispute resolvers” with an array of processes should be a key element of their training.