Common terms: benefits and problems
By contrast, the Conciliation Rules of the United Nations Commission on International Trade Law (UNCITRAL) suggest that a ‘conciliator’ has an active role and proposes solutions, a role similar to that outlined in NADRAC’s Definitions Paper:
(1) The conciliator assists the parties in an independent and impartial manner in their attempt to reach an amicable settlement of their dispute…
(4) The conciliator may, at any stage of the conciliation proceedings, make proposals for a settlement of the dispute …
It seems, therefore, that the confusion over the terms ‘conciliation’ and ‘mediation’, which is explored in the next sections, is not unique to Australia.
To what extent should Australian use of ADR terms reflect international usage?
3.6 Is conciliation a facilitative process?
It has been a moot point for some time as to whether conciliation, especially statutory conciliation, is a facilitative process. Conciliation is often a process in which a practitioner plays multiple roles within external requirements and constraints. The following comments bear this out:
Many Statutory Conciliation processes do not fit under the facilitative umbrella and indeed are a combination of some of the other processes identified. Statutory Conciliation … has different imperatives and features that set it apart from the other categories. Some of these include: powers afforded to Conciliators in conjunction with the conduct of a facilitative process, eg. powers to direct evidence and some decision-making powers; differing procedural issues, eg. time constrictions; differing administrative environments, eg. numbers of matters and investigative process leading up to the facilitative process; and frameworks that are centred around being an advocate for the particular legislation and therefore conducting a rights-based process with respect to the legislation. (Response to NADRAC’s Standards Discussion Paper)
… under the … act, conciliation has a very ‘hands on’ meaning. Conciliation is compulsory under the act, and conciliators may make determinations with the assistance of advice from approved experts, who, according to the NADRAC definitions, are presumably undertaking ‘advisory ADR processes’ when they do health examinations. Other investigations undertaken in such a context would, presumably, be considered by NADRAC to be an aspect of ‘advisory ADR processes’. (Response to NADRAC’s Standards Discussion Paper)
The term ‘conciliation’ is used in diverse ways both in Australia and overseas22. It has been used to describe the role of a go-between who transmits offers and proposals between the parties, informal processes with relatively low levels of third party intervention and more formal processes within statutory settings with high levels of third party intervention.
‘Conciliation’ often refers to rights-based processes, while ‘mediation’ often refers to interest-based processes. However, as the next section shows, ‘evaluative mediation’ may also refer to rights-based processes.
How should the term ‘conciliation’ be defined or described?
3.7 Is mediation purely ‘facilitative’ in nature?
In the context of ADR the term ‘content’ is sometimes used to refer to ‘what is discussed’ while the term ‘process’ is used to refer to ‘how’ the ADR process takes place.23
According to NADRAC’s Definitions Paper, a ‘mediator’ is a facilitator of the process and:
has no advisory or determinative role in regard to the content of the dispute or the outcome of its resolution, but may advise on or determine the process of mediation whereby resolution is attempted.
An alternative view is that a mediator can (and should) evaluate the content of the dispute24, and that it is quite appropriate for a mediator to give advice. For example:
No matter what mediators say, participants perceive that they give advice. It is therefore time to abandon definitions which purport to indicate mediators do not give advice. In my view, the ‘silent sentence’ which should be added to each of the mediation definitions is The Mediator may advise the parties in their negotiations. (Response to NADRAC’s Standards Discussion Paper)
In evaluative mediation, the mediator has a role in ensuring that ‘settlement is in accordance with … right and entitlements … and possible court outcomes’25. Those who view mediation purely as process facilitation, however, regard ‘evaluative mediation’ as a contradiction in terms.26
The distinction between assistance or advice on content and assistance or advice on process is not always clear. For example, the current emphasis on child-centred practice in family mediation suggests that mediators need to evaluate:
[in] which situations direct child consultation would assist the child and the outcome of the parents’ counselling or mediation.27
Current practices indicate that mediators may be involved in the content of disputes in various ways, such as providing information, making assessments, suggesting options or expressing an opinion, through to giving advice on the facts, the law or possible outcomes. At what point does such involvement mean that the process is no longer ‘mediation’?
To what extent should the term ‘mediation’ assume that advice or evaluation is not given?
3.8 Court based and in-house mediation
To what extent should ‘mediators’ and ‘mediations’ be structurally isolated from, and independent of, decision-making processes?
Some argue that, as a matter of definition, ‘mediation’ cannot be provided by court officers as they are perceived to be part of the decision-making process of the court. Rules of natural justice may constrain court officers from conducting some of the procedures commonly involved in mediation, such as holding private sessions with each party.28 On the other hand, many argue that court-based ADR practitioners are independent of the decision-making process and can therefore be regarded as ‘mediators’.
In practice the term ‘mediation’ is used frequently for ADR processes conducted by court officers. For example:
From 1 January, 2000, the Family Court re-positioned its counselling, conciliation and mediation services and as a consequence all its dispute resolution services are now referred to as ‘mediation’. …What has developed both here and overseas is a range of mediation models which vary in terms of being facilitative or evaluative and in terms of the extent to which they change behaviour. The difference is that the Australian legislation uses different, and often confusing, terminology for similar dispute resolution processes, which essentially all fit within the definition of ‘mediation’ (Submission by the Family Court of Australia to the Family Law Pathways Advisory Group 2000)
Many other Australian courts also provide services that they refer to as ‘mediation’. Most of these mediations are conducted in-house by their own officers.29
A similar argument applies to internal dispute handling processes within organisations. For example, a manager may facilitate a resolution in a dispute between employees. Since the manager has formal decision-making powers with respect to the employees, there may be constraints on the discussions. Such constraints would not apply to mediation conducted by an external service provider.
While courts and internal grievance handlers commonly use the term ‘mediation’, there may be a case for encouraging court-based and internal providers to use terms such as ‘conciliation’ or ‘facilitation’ to describe their (non-determinative) ADR processes.
Should courts (and other organisations) be encouraged to use terms other than ‘mediation’ for facilitative ADR processes conducted by their own officers?
3.9 Mediation and counselling
‘Counselling’ has been described as a therapeutic process designed to deal with individual and interpersonal difficulties, while ‘mediation’ and ‘conciliation’ focus on the practical dimensions of disputes30. Various forms of ADR, such as therapeutic mediation, conciliation counselling and dispute counselling show that this distinction is not always clear.
Like mediation, counselling itself can take many forms. The difference between therapy and counselling is not always clear. ‘Therapy’ is more commonly used to describe treatment of a clinically diagnosed disorder, while ‘counselling’ is more commonly used to describe support to people experiencing normal problems, stresses or crises.
Although mediation, counselling and therapy may share techniques or procedures, there may be more fundamental differences about:
the nature of the assistance sought (for example, mediation could be seen as dealing with a dispute, counselling with a problem and therapy with a disorder)
the goal of the intervention (for example, mediation could aim for agreement, counselling for adjustment and therapy for cure).
‘Therapeutic mediation’ could refer to a combination of therapy (or counselling) and mediation (that is, a hybrid process), or could describe mediation conducted by a therapist (or counsellor). ‘Therapeutic mediation’ could also refer to models of mediation that emphasise the human and interpersonal aspects of a dispute, in contrast to models, such as ‘settlement mediation’, which emphasise compromise and positional bargaining. ‘Transformative mediation’ may be a more appropriate term for this intended meaning of ‘therapeutic mediation’.
Can clear distinctions be drawn among ‘mediation’, ‘counselling’ and ‘therapy’? If so, what are these distinctions?
3.10 Community mediation
In its Definitions Paper, NADRAC described ‘community mediation’ in terms of the manner of mediator selection, namely as:
a [mediation] process in which [the mediator is] chosen from a panel representative of the community in general.
State and Territory Governments in Australia have funded mediation schemes that select mediators from a community panel. In several jurisdictions, legislation provides for the formal accreditation or gazettal of community mediators. Similar schemes exist throughout the world. Although the schemes have used different approaches, they commonly involve sessional mediators and use a co-mediation approach. This form of service delivery has often been described as the ‘community mediation model’.
‘Community mediation’ may also refer to the subject matter of the dispute, that is, the mediation of community disputes, such as neighbourhood conflict, disputes within community organisations and disputes involving local governance issues (as community mediation services described above specialise in such disputes, these meanings often merge).
Alternatively, ‘community mediation’ could refer to the nature of the organisation providing the service. In recent years the term ‘community mediation services’ has been used to describe family and child mediation services provided by non-government organisations approved and funded through the Commonwealth Government. These services employ professional staff and do not use mediators drawn from a representative community panel. Under the Family Law Act and Regulations, a community mediator is a mediator employed by a family and child mediation organisation that has been approved by the Commonwealth Attorney-General31. As a result, a mediator accredited under a State- or Territory-funded community mediation scheme (as described above) may be a ‘private mediator’ under the Family Law Act.
How should the different meanings of ‘community mediation’ be distinguished?
3.11 Victim-offender mediation and diversionary conferencing
In its report on standards, NADRAC noted that:
There may be difficulties in setting clear boundaries around ADR and other processes. For example … criminal justice matters may involve a conflict between individuals, and between the individual and society at large, represented by the state. Criminal matters may co-exist with, follow or lead to civil disputes.
Diversionary conferencing and restorative justice schemes operate in several Australian jurisdictions. These schemes generally bring together victims, offenders and support people in an attempt to resolve issues arising out of the offence. They may be alternatives to formal charging and processing by courts.32 Police and other justice authorities run such schemes, sometimes in conjunction with community programs.
In addition, State- and Territory-funded community mediation schemes have provided victim-offender mediation services in which mediators facilitate discussions between victims and offenders. Such mediations may take place at different stages of the formal justice system. According to NADRAC’s Definitions Paper, ‘victim-offender mediation’ is:
... a process in which the parties to a dispute arising from the commission by one of a crime against the other, with the assistance of a neutral third party (the mediator), 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 of its resolution, but may advise on or determine the process of mediation whereby resolution is attempted.
While there are similarities between victim-offender mediation and diversionary conferencing, the goals and assumptions of these processes may differ. Diversionary programs address social policy goals apart from agreement (or understanding or restitution) between the victim and offender. These considerations include administration of prescribed penalties, deterrence and rehabilitation of the offender. That is, in diversionary conferencing, the state plays a more active role in defining the issues and determining outcomes.
These issues raise complex questions about the relationship between the civil and criminal justice systems, the role of the state and the difference between a ‘dispute’ and an ‘offence’.
What terms should be used to describe ADR and related processes within the criminal justice system?
3.12 Emerging technology
Information technology (IT) presents an emerging challenge for ADR terminology.33 Various terms have been used to describe ADR processes conducted with the assistance of IT. These terms include ‘on-line ADR’, ‘ODR’ (on-line dispute resolution), ‘eADR’ (electronic ADR), ‘virtual ADR’, ‘cyber mediation/ADR’, and ‘techno-ADR’.
The digital age has seen the emergence of a new abbreviated language, suited to electronic text, which may lead to new terms for ADR processes. For example, services provided on-line to assist in resolving electronic commerce disputes between businesses and consumers could be referred to as ‘ODR 4 eB2C’ (on-line dispute resolution for electronic business to consumer).
IT assisted processes may resemble the procedures that would occur in face-to-face interaction. For example, on-line arbitration follows a similar process to face-to-face arbitration and on-line (text based) mediation resembles shuttle mediation. A video-conference is similar to a face-to-face meeting. Automated processes such as blind-bidding, however, have been developed specifically for the on-line environment and do not resemble traditional face-to-face processes.34
Professional literature now refers to technology as the ‘fourth party’ assisting the ADR practitioner.35 Artificial intelligence may lead to sophisticated automated processes that enable complex ADR processes to be conducted entirely through a computer program. When that happens, the program would no longer be the fourth party. Instead the program itself could be seen as the ADR practitioner or third party.
What are the implications of emerging technologies for terms used in ADR?
3.13 Future trends in ADR
Changes in ADR practices have brought about the need to review ADR terms. Terms will also need to take account of possible future trends in ADR, such as:
increased use of court based ADR
greater integration of ADR into the formal internal processes of organisations
the spread of industry based schemes, such as industry ombudsman schemes, and self-regulated or co-regulated codes of conduct
greater awareness of ADR among parties and referring agencies and increased sophistication in referral practices
increased global competition and competitive tendering for the delivery of ADR services
a push towards greater cost-effectiveness in the delivery of ADR services and increased use of performance and outcome measures
increased use of information technology and virtual communications
greater coordination in standards, accreditation, education and training in ADR
increased professionalisation and institutionalisation.
These trends may create competing pressures. As a wider range of cases is referred to ADR, ADR service providers may need to offer more diverse and flexible services. They may need to tailor interventions to meet the specific needs of individual disputes and parties. This could lead to a greater emphasis on holistic service delivery and less emphasis on discrete ADR processes.
At the same time, increased sophistication and competition may lead ADR service providers to place greater emphasis on specialisation and product differentiation to establish niche markets. Specific terms may then evolve around each area of practice and may make common standards more difficult to achieve.
How might future developments in ADR affect terminology?
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