National Alternative Dispute Resolution Advisory Council adr terminology: a discussion paper


Common terms: benefits and problems



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    1. Common terms: benefits and problems

2.1 Benefits of common terms


Consistent ADR terminology serves several important functions.

First, common definitions or descriptions of ADR processes ensure those who use, or make referrals to, ADR services receive consistent and accurate information, and have realistic and accurate expectations about the processes they are undertaking. This will enhance their confidence in, and acceptance of, ADR services.

Second, consistent use of terms for ADR processes helps courts and other referring or mandating agencies to match dispute resolution processes to specific disputes and different parties. Better matching would improve outcomes from ADR processes.

Third, a common understanding of ADR terms helps ADR service providers and practitioners to develop consistent and comparable standards. Such understanding also underpins contractual obligations and the effective handling of complaints about ADR services.

Fourth, common terms provide a basis for policy and programme development, data collection and evaluation.

Many commentators have called for greater consistency in ADR terminology, for example:

… ADR and non-ADR terminology and practices should be made consistent, where appropriate, across all major complaints handling, investigation and dispute resolution services, including courts and tribunals. (Response to NADRAC’s Standards Discussion Paper)

… definitions count. Clear definitions of practice are undoubtedly needed for quality assurance as well as providing a basis for funding bodies and consumers to make decisions. (Response to NADRAC’s Standards Discussion Paper)

There is greater awareness of ADR at the moment, but … consistency and conciseness in terminology is needed.4

The Family Law Pathways Advisory Group has recommended:

that definitions of primary dispute resolution methods be developed, adopted across the family law system and published in language which accurately and clearly describes what is available.5

Contradictory information on ADR processes may lead to confusion among parties, practitioners, legal representatives and referrers. Inconsistent use of ADR terms may create doubt about legal rights and inhibit communication by parties who may be unclear about the confidentiality of the process. Parties and legal representatives may be ill-prepared for the ADR process in which they are taking part. The obligations of practitioners to comply with particular standards may be unclear. Questions may also arise over immunity provisions and coverage of professional indemnity insurance. Costs associated with the delivery of ADR services may therefore increase.

These benefits suggest the need for common definitions or descriptions of ADR processes.

2.2 Problems with common terminology


There are several possible problems with the development of common terminology for ADR processes, especially if these terms were to take the form of rigid definitions. Such definitions could limit the creativity, diversity and flexibility in ADR practice. For example:

[while there needs to be agreement on the basic definitions] strict legal definitions could lead to the loss of flexibility and lateral thinking in ADR.6

Strict definitions may create artificial distinctions and reduce complex processes to separate and discrete procedures. They may reduce the ability of courts and practitioners to make commonsense interpretations of particular provisions. A minor departure from a legally defined ADR process may invalidate the entire process and cause extra cost and inconvenience for the parties.

A common set of terms may also limit the capacity of ADR service providers to market their services to particular target groups and to tailor their information to the needs of those using their services. For example, a particular word or phrase may be more acceptable to a specific group even though its use may not match its strict definition.

While consistency may be desirable, the controversies over the use of ADR terms and the lack of consistency in current use, may make this an impossible goal. It may be better to accept the inconsistencies and avoid creating the impression that terms for ADR have any universal currency. That is, those using ADR services should find out how terms are used in each particular case.

A further view is that consistency is impossible at the theoretical level. Meanings are localised and arise out of the social context in which words are used. Multiple meanings may co-exist. The meaning of a word, such as ‘mediation’, is not determined by its formal definition but arises out of the interaction between the ADR practitioner and the parties.

These problems suggest that common definitions or descriptions of ADR processes may be neither feasible nor desirable.

            1. What, if any, problems, complaints or legal issues have arisen (or may arise) about the inconsistent use of ADR terms?
            2. What are the arguments, other than those set out in this paper, for or against consistent terminology in ADR?


    1. The issues

3.1 Umbrella terms

The ‘A’ in ADR


The term ‘alternative’ dispute resolution raises fundamental issues that have been canvassed extensively in the literature7. First, the term raises the question, ‘alternative to what?’. Secondly, the adjective ‘alternative’ may not reflect how ADR processes are used in practice.

NADRAC's Definitions Paper refers to ADR as an alternative to judicial determination. For some parties and for some disputes this is an accurate description. However, not all parties would choose, or have access to, the court process and for them ADR is not an alternative to judicial determination. From this perspective, ADR provides an alternative to otherwise unsatisfactory options such as tolerating or withdrawing from the conflict, or to taking more dramatic action such as violence or industrial action. In this context ADR processes may not be 'alternatives' at all, but the only realistic options available for dispute resolution.

Many processes aim to resolve a dispute or problem without a judge or magistrate making a decision. These processes are not always seen as forms of ADR. Examples are:

Quasi-judicial bodies

Quasi-judicial processes are used by tribunals and other statutory bodies that investigate and decide on issues, and by industry-based adjudicators that interpret and apply a code of conduct. As in court processes, quasi-judicial processes do not provide individual parties with choices about the process, the practitioner or the outcome. Although quasi-judicial are alternatives to judicial determination, they are not ordinarily regarded as part of ADR.
Administrative determination

Administrative procedures may also provide alternatives to court. For example, a predetermined formula may be used to settle liabilities or credit card charge-back arrangements may enable credit providers to resolve issues between suppliers and purchasers.
Practical solutions

Service providers may provide direct and practical support to help parties to resolve their dispute. For example, a community mediation service may arrange advice on gardening or pet management to help in settling disputes between neighbours.
Implementing agreements

A range of facilities are available that enable parties to implement an agreement reached. For example, electronic deal rooms enableagreements reached through e-mail to be digitally signed and validated, and escrow arrangements enable a third person or entity to act as custodian of written agreements or bonds.
Diversionary processes in the criminal justice system

Diversionary programmes in the criminal justice system aim to steer an offender away from a hearing in court. Examples are treatment programmes, police cautioning, diversionary conferencing and victim-offender mediation. (See also Section 3.11)
One on one processes

ADR service providers may assist one party to consider options for resolving or managing the dispute, such as when the second party declines to attend. These forms of support have been described as dispute counselling, decision-making for one or education for self-advocacy (see Glossary).

The word ‘alternative’ in ADR is sometimes seen as referring to ‘interest-based’ dispute resolution processes and as an alternative to ‘rights-based’ processes. Interest-based processes are concerned with finding solutions that meet the needs and interests of the parties involved. Rights-based processes are concerned with determining outcomes based on rights, rules and law.8 Binding determinative processes, such as arbitration, would fall outside this meaning of ADR9.

Conversely, ADR may refer more broadly to a range of interest-based and rights-based processes used to manage and settle disputes in both court and non-court settings. On this basis, ‘alternative’ may be a misleading term since it implies an exceptional process separate from routine case management procedures. To avoid this, the Federal Court of Australia and the Commonwealth Administrative Appeals Tribunal use the term ‘assisted’ dispute resolution. The adjectives ‘additional’ or ‘appropriate’ have also been suggested.10 A further option is to drop the adjective and refer simply to ‘dispute resolution’.

The term ‘primary dispute resolution (PDR)’ has been used in family law since 1996 to describe a similar set of processes to ADR and has also been adopted by the Federal Magistrates Service (see Glossary). The word ‘primary’ stresses that most family law disputes are resolved firstly by processes such as counselling, conciliation, mediation and arbitration, and that judicial determination is usually the last resort. The terms ‘ADR’ and ‘PDR’ are often used interchangeably, but it is unclear whether their meanings are identical.

The acronym ‘ADR’ may also be used as a term in its own right, not as an acronym. This avoids the problems associated with the ‘A’ in ADR but gives little guidance either to legislators or to service users.


The ‘D’ in ADR


A ‘dispute’ may be regarded as an essential element of the concept of ADR.

In some areas of ADR practice, the existence of a dispute is a condition for referring or accepting a matter for ADR11. For example, the Community Justice Centres Act 1983 (NSW) provides for mediation to deal with disputes and states simply that:

… persons may be treated as being in dispute on any matter if they are not in agreement on the matter [Section 22(3)].

Processes commonly described as ADR, however, may be used where no dispute exists or where a dispute or conflict is a secondary issue. For example, mediation may aid fact-finding, problem-solving or interest-based negotiations even where the parties may not see themselves as being in dispute with each other. (See also Section 3.11 in relation to the use of ADR with ‘offences’).

Merits review legislation, such as the Administrative Appeals Tribunal Act 1975 (Cth), refers to processes such as ‘mediation’ and ‘conferencing’ in the context of conducting merits review. Generally, the function of a merits review body is to make the correct and preferable decision, rather than to resolve a ‘dispute’ between an applicant for review and the original decision-maker. It could therefore be argued that the term alternative ‘dispute’ resolution should not be applied to primary merits review. Processes included within the umbrella concept of ADR may nevertheless be helpful in resolving issues raised in applications for merits review.

Native title matters raise similar issues. The Native Title Act 1993 (Cth) provides for the recognition of native title and requires the Federal Court to consider mediation by the National Native Title Tribunal as a way of reaching agreement about native title. Native title is essentially a recognition of traditional Indigenous rights in land and waters. In many instances, these rights will co-exist with the rights and interests of others. A claim for native title may be made without any history of past relations or dispute between the claimants and other persons with interests in the area claimed. The mediation process aims at reaching agreement between parties about a number of specific matters. These matters include whether native title exists and, if so, who holds native title; what the native title rights and interests are; and the relationship between those rights and interests and any other interests in relation to an area of land or waters. If agreement cannot be reached, these matters are determined by the Federal Court. The mediation does not necessarily involve the resolution of a particular matter in dispute and may include the consideration of matters of practical workability, for example, how native title rights will be exercised in the future consistently with the rights of others. The involvement of different interests and groups, however, means that native title claims may, and often do, give rise to disputes. The term ‘ADR’ could therefore be seen as limited to particular aspects of the native title recognition process.

The use of ADR in complaint handling schemes also raises issues about the use of terms. The Benchmarks for Industry Dispute Resolution Schemes12 recommend that:

[dispute resolution schemes] …use appropriate [non-adversarial] techniques including conciliation, mediation and negotiation in attempting to settle complaints.

Theoretical literature13 and procedural documents14 make distinctions among the terms ‘disputes’, ‘complaints’ and ‘grievances’. A dispute usually refers to an unresolved complaint or grievance, for example, where a request to remedy a situation has been rejected or ignored (sometimes within set time-lines). Precise definitions would suggest that ADR processes would not be used until a complaint (or grievance) reached the dispute stage. As outlined below, however, ‘ADR’ can also be given a far broader meaning.

The ‘R’ in ADR


Does the term ‘ADR’ necessarily denote that a dispute needs to be ‘resolved’ or does it have a wider connotation? Responses to NADRAC’s Standards Discussion Paper suggest that ADR may have other objectives apart from resolution of a dispute, for example:

  • Narrowing the scope of the dispute.

  • Clarifying the situation of parties as to their negotiating positions and their options should negotiations break down.

  • Exchanging of information in a without prejudice setting.

  • Selecting of the most appropriate and economic method of dispute resolution.

  • Helping to empower parties to act in their own interests and to recognise the interests of others.

  • Providing insight into relationship dynamics.

  • Transforming understanding, relationships or behaviour.

‘ADR’ is commonly used as an umbrella term for practices that go beyond the resolution of specific disputes between parties. Such practices include the management of grievances and complaints, consensus-building, interest-based approaches (see above), collaborative decision-making, dispute avoidance, dispute prevention, dispute system design, peace-making and conflict management. That is, ‘ADR’ may refer not so much to specific processes, but rather to a shared set of methods, goals, assumptions or values15.
            1. Do we need clarity on an umbrella term for the processes described in this paper? Can several umbrella terms be used? If so, what terms?
            2. How should the terms ‘dispute’ and ‘resolution’ be defined or described? Is the purpose of ‘ADR’ necessarily to ‘resolve’ a ‘dispute’?

3.2 Who is the third party?


Commentators have struggled to find suitable words to describe the ‘third party’ in ADR.

The term ‘third party neutral’ (‘TPN’) is often used, particularly overseas16, to describe diverse ADR practitioners. The word ‘neutral’ has come under criticism.17 ‘Neutral’ may imply that the ADR practitioner’s behaviour is passive and disengaged, which may not promote fairness. ‘Neutrality’ may also imply that the ADR practitioner has no interest in the outcome, whereas in ADR processes such as statutory conciliation (see Glossary), ADR practitioners have a clear interest in ensuring that outcomes comply with certain requirements.

The term ‘impartial’, which refers to even-handed behaviour by the practitioner, may be more widely applicable. NADRAC’s brochure What is ADR? referred to the ADR practitioner as an ‘impartial’ person who helps those in a dispute to resolve the issues between them. Other terms, such as ‘independent’, ‘non-aligned’ or ‘non-partisan’ third party, could also be considered. The term ‘mutually acceptable’ third party may be suitable in community, public policy and international disputes, but would not cover statutory ADR processes where the parties do not choose the ADR practitioner.

Some commentators would not describe ADR practitioners as ‘third parties’ at all, since they are not, in fact, parties to the dispute. A different term, such as ‘intervener’, may therefore be more appropriate. Despite such concerns, this paper continues to use the term ‘third party’ for editorial purposes.

Could ADR also cover situation in which the professional interveners act as advocates for the parties? Settlement negotiations between lawyers are sometimes described as ADR but are not conducted by neutral (or impartial) third parties. Direct negotiations between the parties themselves may also be referred to as ADR. Practitioners may support direct negotiation, such as by providing clients with training, coaching or personal advice. Are these also forms of ADR?

Negotiations that are aided by information technology raise new difficulties in describing the role of the ‘third’ (or ‘fourth’) party in ADR (see Section 3.12).


            1. How should the position or role of the ‘third party’ or ‘intervener’ in ADR be defined or described?

3.3 How should ADR processes be classified?


There are many ways to classify ADR processes, which could relate to the role of the third party, or to the nature of the process or its outcome.

Role of the third party

ADR processes may be classified according to the role of the third party. NADRAC’s Definitions Paper divided ADR processes into facilitative (where the third party facilitated resolution), advisory (where the third party made an evaluation or provided advice) or determinative (where the third party made a decision). As outlined in Section 1.3, facilitative and advisory categories could be further classified together as non-determinative or consensual processes.


Using suffixes (such as -ative and -ory) creates long and complex words. A suggested plain English approach is to use assisted, advised or determined instead of facilitative, advisory or determinative processes. Alternatively, definitions or descriptions could avoid referring to processes and simply classify ADR practitioners into those who facilitate, advise or decide.

Level of formality


ADR processes may be classified according to their level of formality. Formal processes involve procedures such as a detailed written contract with the ADR service provider or formal rules of evidence. Informal processes may involve an oral agreement to meet together and few, if any, formal rules. This form of classification is illustrated in the table in Section 3.5.

Structure


ADR processes may be classified according to their degree of structure. Structured processes follow a predetermined plan, while unstructured processes evolve as each session proceeds.

Statutory constraints

ADR processes may be classified according to any statutory constraints that may apply. Some ADR processes are constrained by statutory requirements covering the rights and obligations of the parties or practitioners, and the scope and nature of any decisions made. Other processes have no direct statutory constraints.

Degree of compulsion


ADR processes may be classified according to the degree to which parties are compelled to participate in them. In purely voluntary processes, parties are free to choose whether to attend or participate in ADR, without any negative consequences if they elect not to. At the other extreme, parties may be compelled to attend (such as by court order or contract) and risk a penalty if they fail to comply. Options between these two extremes are more common. For example, an authority may encourage parties to use ADR without penalising a failure to attend.

Status of outcomes


ADR processes may be classified according to the status of the outcome of the process. The outcome may be consensual or imposed, binding or non-binding, enforceable or non-enforceable. Enforcement may be effected through the person or agency conducting the ADR process itself, or through recourse to an external process (see NADRAC’s Definitions Paper).

Communication flow


ADR processes may be classified according to the communication flow among the parties and practitioners. Parties may meet face-to-face and all sessions may include both parties. Alternatively the third party may relay messages and offers without the parties meeting face-to-face (for example, in shuttle mediation and blind bidding). Processes may also use a mixture of face-to-face and separate sessions (for example, mediation with joint and private sessions).

Mode of service delivery


ADR processes may be classified according to the nature of the practitioner and the mode of service delivery used. Examples include co-mediation, expert mediation, judicial dispute resolution (JDR) and community mediation.

Types of disputes


ADR may also be classified according to the types of disputes dealt with, for example, commercial, consumer, business, environmental, public policy, multi-party, family, neighbourhood, victim-offender or workplace.
            1. Is a classification system for ADR processes needed? If so, how should they be classified?

3.4 Hybrid and combined processes


NADRAC’s Definitions Paper described discrete ADR processes and noted that practitioners may move from one process to another. There is, however, an increasing trend towards combining two of more processes into one.

Discrete ADR processes can be combined in a structured way. For example, in hybrid processes such as med-arb a practitioner may conduct a mediation process, then, if no agreement is reached, formally move to an arbitration process. In conferencing schemes conducted in legal aid commissions, an ADR practitioner may facilitate discussions (a mediation type process) and then prepare a report and recommendations (through an evaluative process).

Combined processes, however, may not have discrete stages and may use various approaches in a fluid way, as the following feedback suggests:


  • The terms facilitative, advisory and determinative used to describe the range of practices within ADR are very useful. They are indicative of the range of procedures used, which is not conveyed by the commonly used terms of mediation, arbitration and conciliation. However, the debate about ADR often occurs by narrowly defining the procedures that are undertaken. A case dealt with in ADR may involve facilitating, advising and making a determination. (Response to NADRAC’s Standards Discussion Paper)

  • While the matters at the [agency] do involve a neutral third party, processes used there do not fit easily into any of the categories described in [NADRAC’s Definitions Paper]. (Comment received in review of Definitions Paper)

  • The philosophy of the service is to view alternative dispute resolution as a means to treat the (specified) community, key stakeholders and other interested parties in a holistic manner. … The two main features of this model are:

An intake process which focuses on developing a holistic understanding of a core dispute which (usually) has many mitigating or ‘satellite’ issues requiring attention before there is potential for a realistic and therefore lasting agreement to be mediated.

A flexibility in the selection and application of ADR processes (negotiation, conciliation, mediation, arbitration) to mesh with various and diverse cultural considerations. (Response to NADRAC’s Standards Discussion Paper)

The practice of combining different ADR processes expands the choices available to ADR practitioners and service users. ADR terms may need to reflect which processes are combined and how they are combined.

            1. How should ADR terminology reflect the practice of combining ADR processes?

3.5 International usage


Lack of consistency in ADR terms is not unique to Australia. While terms such as ‘arbitration’ appear to have consistent meanings in international statutes and treaties, it is not clear whether all ADR terms are used consistently in other countries.

In particular, the terms ‘conciliation’ and ‘mediation’ are used in diverse ways.18 For example:

Primary dispute resolution services in Australia have developed in parallel with the development of similar services in the United States. Whereas the terms ‘conciliation’ and ‘counselling’ have long since disappeared from the literature in reference to dispute resolution services in the United States and elsewhere, these terms have remained enshrined in Australian family law, with ‘mediation’ grafted on as a separate dispute resolution service in 1991. (Submission by the Family Court of Australia to the Family Law Pathways Advisory Group)19

Conversely, policy papers in countries such as Japan20, have used the term ‘conciliation’ rather than ‘mediation’ for these processes.

Documents produced by international organisations make a clear distinction between ‘conciliation’ and ‘mediation’ (although this distinction may not be the same as that contained in NADRAC’s Definitions Paper). According to the OECD Working Party on Information Security and Privacy and the Committee on Consumer Policy, conciliation is at the less formal end of the spectrum, while mediation is at the more formal end (see table below).

Main ADR Forms and Processes (OECD) 21

Corporate complaint services

Assisted negotiation

Mediation

Arbitration

Litigation




  • Facilitation

  • Conciliation




  • Automated, or not

  • More or less active guidance by the neutral

  • Voluntary or mandatory participation

  • No obligation on the parties to agree, before entering ADR, that the outcome will be binding

  • Agreed upon outcome

  • Voluntary or mandatory submission

  • Automated or not

  • Final and binding












Informal to formal ADR





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:

Article 7

(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.


            1. 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.

            1. 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’?

            1. 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.

            1. 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’.
            1. 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.

            1. 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’.

            1. 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.


            1. 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.


            1. How might future developments in ADR affect terminology?
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