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Chapter 2

RESOLVING DISPUTES

The Government's justice strategy is geared towards the resolution of disputes before there is a need to pursue the formal avenue of litigation.

The Government will encourage the shift from litigation to other means of resolving disputes by expanding and improving counselling and mediation services available to the community.

The Government will:

Our court system provides independent, high quality, final adjudication of disputes. Citizens of this country must always have the right to seek a final determination of their legal rights before a court. The principles of justice and fairness underpinning our society demand that all Australians be allowed their day in court.

The Government is committed to reforming the courts to make them more accessible for those cases that truly belong in the courts. The Government's strategy for the reform of courts and tribunals is detailed elsewhere in this Statement.[1]

Of course, many matters are better settled outside the formal confines of the court system. People should be able to choose how disputes affecting their lives are resolved. The Government's strategy aims to reduce litigation through the courts and offer alternatives that are less formal, are managed by the parties themselves and provide opportunities for the people involved to have a real say in the outcomes.

The Government has already introduced a number of initiatives that provide an alternative to the courts. These have ranged from the introduction of the Commonwealth administrative law package in the 1970s and 1980s to an emphasis on mediation services in recent years. Mediation is one of a range of options broadly known as alternative dispute resolution. The Justice Statement builds on these achievements by expanding and improving alternative dispute resolution processes.

ALTERNATIVE DISPUTE RESOLUTION

Alternative dispute resolution is not new. It is available in various jurisdictions in relation to a variety of matters. It is embodied in the industrial relations provisions of the Australian Constitution. The Industrial Relations Court uses the conciliation facilities of the Industrial Relations Commission to help settle unfair dismissal matters. Since 1991, arbitration and mediation have also been available in the Federal Court and the Family Court. In addition, various tribunals such as the Administrative Appeals Tribunal and the National Native Title Tribunal, and similar bodies, for example, the Human Rights and Equal Opportunity Commission, use alternative dispute resolution techniques to assist in resolving disputes.

In recent years, there have been calls from the community to provide accessible alternatives to litigation in other areas. The Commonwealth has led moves to meet these demands. A number of alternative dispute resolution processes are now in place in Commonwealth jurisdictions. State and Territory Governments have also moved to utilise mediation or other alternative dispute resolution options.

In addition, many industries have seen the advantages of alternative dispute resolution for both consumers and their own members through the establishment of industry-based complaints and dispute handling processes for their customers.

Mediation, which is a consensual and non-adjudicative process, is an increasingly popular form of alternative dispute resolution. Other processes include arbitration, conciliation and expert determination.

The Government's main emphasis in this Statement is on extending mediation, which is proving to be an excellent alternative to litigation through the courts. Some arbitration initiatives in the Family Court and the Federal Court are also being pursued.

MEDIATION SERVICES

Mediation is designed to enable people involved in a dispute to agree on a solution themselves. A neutral person, the mediator, assists the parties to isolate the issues and explore the best options for resolving their dispute. The mediator does not impose any solutions or make decisions. Matters resolved in this way impose less emotional and financial burdens on people. The results are more likely to be accepted by the parties and more likely to endure.

Not all disputes are appropriate to resolve through mediation. As mediation depends on a consensual outcome that the parties develop by a process of bargaining and agreement, it cannot operate fairly in situations where the parties are significantly unequal. In particular, the Government recognises the inappropriateness of using mediation to resolve disputes in relationships that are tainted by violence and fear. The Government's commitment to a system of safeguards to ensure that mediation is not used in such circumstances is detailed more fully below.

MEDIATION IN COURTS AND TRIBUNALS

The Courts

In the Federal Court, the Assisted Dispute Resolution program has been in operation since 1987. In the early stages of any court proceedings, judges assess cases for their suitability for mediation and may suggest this option to the parties. Generally, mediation is conducted by registrars trained in that process. On rare occasions, mediation is undertaken by judges themselves. Any Federal Court matter can be referred for mediation. In practice, over 90% of mediated cases have involved claims under the consumer protection provisions of the Trade Practices Act.

The Family Court offers mediation in addition to its more traditional services. Initiatives in the Family Court are discussed below.

Since October 1994, the Industrial Relations Court has also been conducting in-house mediation.

Tribunals

The Administrative Appeals Tribunal uses mediation in cases where the Tribunal considers it will be an appropriate alternative to proceeding to a hearing. The Tribunal's mediation program has achieved both a high resolution rate and high satisfaction on the part of parties who have participated. The Tribunal is currently developing a national mediation policy and is undertaking a comprehensive evaluation of its mediation program, which is being conducted by an independent evaluator. It also conducts ongoing training in mediation skills for its members and staff who conduct conferences.

Mediation is the preferred method of handling disputes in the National Native Title Tribunal.

MEDIATION AND COUNSELLING IN FAMILY LAW

Mediation as a means of resolving family law matters is a relatively new process in this country. The Government is keen to encourage its development and amendments to the Family Law Act now before Parliament will make mediation the primary means of dispute resolution in most family law matters. In deciding to adopt this approach, the Government has responded the recommendations made in the Parliamentary Joint Select Committee Report, Family Law Act - Some Aspects of its Operation and Interpretation. The move to mediation signals a major shift in emphasis in family law.

Family disputes usually involve complex emotional issues as well as legal matters. As mediation relies on consensus and co-operation, it is an ideal way to resolve disputes in situations where the parties have to maintain some form of relationship, for example, where separated parents need to keep in contact with their children. Increased emphasis on mediation in the family law context will ease the burden experienced by couples, and their children, at a time when they face major life crises and are most vulnerable.

Mediation and Counselling in the Family Court

Parties may use either mediation or counselling in the Family Court in the resolution of disputes. The Family Law Act 1975 has always provided for counselling. Counselling is a more interventionist technique than mediation. It is used to assist parties to resolve disputes, including those relating to children, and to adjust to the consequences of separation. It focuses on the best interests of the child. It may be either voluntary or court ordered, and is available before and during legal proceedings. By contrast, mediation in the Family Court is a more neutral process. Unlike counselling, mediation does not directly suggest solutions but works towards an agreed settlement. It is voluntary and at present is mainly used before applying for divorce.

In the 1994-95 Budget, the Commonwealth committed $4.78 million to establish mediation units in the Family Court in Sydney, Melbourne and Brisbane. Evaluation so far indicates that Court mediation resolves major issues in 80% of cases, with complete agreement in 60% of cases.

The Government will provide $4.3 million over four years to the Family Court to increase its capacity to offer its clients resolution through mediation rather than litigation.
The new funding will enable the establishment of permanent mediation facilities in Adelaide and Parramatta.
Funding of $9.7 million over four years will also be provided to the Family Court to increase existing counselling services.
The Family Court will employ a significant number of additional full-time counsellors representing an increase of 25% in its counselling services. This will reduce waiting times for counselling. It will also enable the court to extend its visiting services to outlying areas that currently are serviced infrequently, and will allow for a limited after-hours service.
The Government will provide $3.8 million over four years to fund the expansion of Family Court counselling services by establishing and upgrading counselling registries in regional areas.
Permanent counselling registries will be located in Coffs Harbour, Mackay and Geelong. The Family Court Counselling Registry in Cairns will also be upgraded to provide a permanent conciliation service and filing services. The establishment of the new registries will improve accessibility of the Family Court's services for clients who live outside major metropolitan centres.

The Government will also fund expanded Family Court services in the Northern Territory, with the introduction of a permanent counselling service at Alice Springs. This service will have responsibility for all clients in central Australia, and will be designed to be sensitive to the cultural issues affecting the local Aboriginal population.

The Family Court will also establish a visiting counselling service to Cape York and the Torres Strait Islands, as these areas presently receive almost no contact from the Court.

Community-Based Mediation Services

In the 1994-95 Budget, the Government committed $3.1 million for community-based family mediation. The Government funds community-based agencies to ensure that people have a choice of mediation services. Research has shown that satisfaction with the process and outcomes of community-based mediation is high, with 90% of respondents willing to use mediation services again if the need arose. Agreements are reached in 75% of cases and are described by clients as being practical, realistic and workable. Community-based services provide easy access for people seeking assistance before they have embarked upon Family Court proceedings.
The Government is committing an additional $16.8 million over four years to increase the number of community-based mediators specialising in family mediation. New services will be established in urban and regional centres throughout Australia.
The additional resources will enable the Government to increase the availability of mediation services in areas identified as being in need of such services. 15,000 clients per year will be assisted by up to 60 new community-based mediators in these services.
In the first year of funding, four community-based mediation services will be established in Sydney suburbs and four in Melbourne suburbs. Two services will be set up in Brisbane and one on the Sunshine Coast. Adelaide, Perth, Hobart and Canberra all will have one service. In the following years, services will also be established in Gosford, Newcastle, Wollongong, northern outer Melbourne, Geelong, Bendigo, Ipswich, Hervey Bay and south-eastern Perth.
With a range of mediation and counselling alternatives available to people through the Family Court or community services, fewer cases will need to proceed to a hearing in a court. This will result in reduced costs to the parties and to the community.

Private Mediation Services

The Family Law Reform Bill 1994 will also extend the range of people who may provide mediation in family law matters to include private mediators.

SAFEGUARDS IN MEDIATION

At the Justice Forum in August 1994, the Prime Minister said, `We must work to expand alternatives to litigation, while ensuring that dispute resolution remains just and fair.'

There are some situations where alternative dispute resolution, and particularly mediation, may be inappropriate. Mediation, for example, may not be the best approach for resolving a dispute when there is inequality of bargaining power between the parties. For example, women may be disadvantaged in family law mediation due to disparity in economic power, or disparity in access to information, or because of a history of violence, or apprehended violence, in their relationship.

While trained mediators will be aware of these considerations, and will ensure that a mediation process is not dominated by one party, the Government accepts that there are certain situations where mediation is inappropriate. Domestic violence is one of those situations. Family law mediators do not mediate in such cases and the rules under which they operate, which include assessment and screening procedures, are designed to ensure that inappropriate mediation does not occur.

The Access to Justice Advisory Committee's Report argued that there was a clear need to develop effective procedures to identify and resolve difficulties such as this.

In response to such observations, the Government is adopting a number of measures to ensure that consumer protection is built into Commonwealth-funded alternative dispute resolution programs.

MEDIATION IN FAMILY DISPUTES

Safeguards in regulations for community and private mediators and in the Family Court Rules will ensure that mediation will not be imposed when there has been a history of violence in a relationship.

The Family Court Rules provide that the parties must be interviewed prior to mediation being conducted to determine if the dispute is one which is suitable for mediation. The matters that must be taken into account in making this determination are:

The issue of screening for violence is a complex one and proper training and supervision of practices will alert mediators to possible power imbalances in relationships when a mediation process is being undertaken. Specialist training for mediators will focus on addressing the inequities that may arise from an imbalance of power between the two parties.
Training for mediators and Family Court counsellors will include a focus on issues of gender, power and cross-cultural awareness.
It is also important that the community is aware of the availability of mediation as an alternative to litigation. People need to recognise its benefits and understand the circumstances in which mediation would be inappropriate.
The Government will undertake community education programs to raise public awareness about the availability of family mediation services and the circumstances in which mediation is appropriate.
A national community education strategy will be implemented over the next three years to broaden the community's awareness of family mediation. The community education strategy will include a radio campaign, posters and brochures, as well as the production of a video to be used by social workers to inform other related professionals about family mediation.

Standards of Mediation

The Government will extend the range of persons who may provide mediation in family law matters to include private mediators. New Government-funded community mediation organisations will need to be approved by the Government before they may mediate in family law matters. Regulations will prescribe requirements to be complied with by community and private mediators. The regulations will contain provisions similar to those in the Family Court Rules discussed above in relation to family violence.

Family Services Council

In late 1994, the Government appointed a Family Services Council to advise it on family services issues.[2] The Family Services Council is responding to the Government's aim of shifting the emphasis in family law from litigation to family mediation. The Council has convened a working group to consider the standards that will be required for approval of family mediation organisations under the Family Law Act. The working group includes members of the Council with mediation expertise, family law practitioners, academics, and other experienced mediators, including one from the Family Court.

ADVISORY COUNCIL ON ALTERNATIVE DISPUTE RESOLUTION

The growth of alternative dispute resolution as an alternative to litigation has given rise to some concerns about the standards of practitioners operating in this field. This has led to calls for greater regulation. There are also a number of unresolved issues concerning the appropriateness of using alternative dispute resolution in certain matters, for example, in situations where the parties are unequal in their bargaining power. The Access to Justice Advisory Committee recommended the establishment of a body to advise on these and other issues in this rapidly developing field.
The Government will establish a specialist Advisory Council to ensure high standards in alternative dispute resolution and to develop informed policy advice for Government on unresolved issues about the use and regulation of alternative dispute resolution.
The Council will investigate alternative dispute resolution and advise on issues that need to be resolved, such as the accreditation of alternative dispute resolution practitioners, and the safeguards needed to ensure that weaker parties are not disadvantaged. The Council will be made up of qualified people in the alternative dispute resolution field.

The Council will have a broad charter. It will:

Moreover, the Council could facilitate innovation and experimentation in the field of alternative dispute resolution. Forms of alternative dispute resolution that are currently limited to particular areas of law could be adapted for innovative uses.

Among the early projects proposed for the Council will be:

ARBITRATION INITIATIVES

Arbitration is generally regarded as the determination of a legal dispute by a neutral third party. Determinations of arbitrators are usually called awards. These awards may be registered with a court and enforced as if they were orders of the court.

ARBITRATION IN THE FEDERAL COURT

Currently the Federal Court is able to refer proceedings, with the consent of the parties, to arbitration. There is no appeal mechanism for awards made in court-referred arbitration.

Amendments to the Federal Court of Australia Act 1976 have been introduced into Parliament to enable a party to an arbitration to seek, on a question of law, a review of an award made in arbitration. Where the arbitration is not yet complete, a party to the arbitration will be able to request the arbitrator to seek leave for a review on a question of law. This change is expected to increase the use of arbitration to resolve disputes before the Federal Court.

ARBITRATION IN THE FAMILY COURT

The Family Law Act provides for both private and court-referred arbitration. Complementary regulations are being developed that will enable family law disputants and the Family Court to use arbitration as an alternative to a court hearing. These regulations will be developed in consultation with the legal profession and the alternative dispute resolution advisory council. A program of voluntary court-referred arbitration in property matters is being developed for trial in the latter half of 1995.

Further consultation will be undertaken with the legal profession on the issue of private arbitration in family law, to clarify issues such as consumer protection standards. This matter will then be further considered by the new alternative dispute resolution advisory council.

ADMINISTRATIVE REVIEW

Citizens have a right to expect accountability from their Government. Administrative review rights are a vital part of this process of accountability in decision making. In the late 1970s and early 1980s, an integrated legislative package of measures was passed by Parliament providing people with a right to challenge Government decisions that directly concern them, and a right to obtain information from Government.

The Government considers that all citizens whose personal rights and interests are affected by Government decisions should have the right to have those decisions reviewed by an independent third party. The Administrative Appeals Tribunal was established so that individuals could obtain independent review of the merits of decisions affecting them. In some areas of high volume programs or specialist knowledge, separate specialist tribunals have been established to provide merits review, with further limited review by the Administrative Appeals Tribunal. While challenges to the lawfulness of Government decisions are possible under the common law, the passing of the Administrative Decisions (Judicial Review) Act 1977 provided simplified procedures for challenging such decisions through the Federal Court.

For the first time, people also were provided with broad rights to obtain reasons for Government decisions that affected them, and to obtain Government information more generally. The office of the Ombudsman was established to investigate concerns about Government maladministration by examining the processes used in decision making.

Through these administrative law reforms, the Government showed itself to be open and responsive to the people it governs, and committed to accessible, fair and lawful decision making.

As part of our ongoing commitment to this process we provide an annual grant of $10,000 to support the work of the Australian Institute of Administrative Law in researching and promoting awareness of administrative law. The Institute is highly regarded for its work in fostering interest in and discussion about administrative law and has for several years sponsored major administrative law forums.

RECENT INITIATIVES

The Government has responded to concerns that taxpayers may not be pursuing small claims in taxation matters because the cost of doing so may be a disincentive compared to the benefits to be gained.
The Government will establish a Small Taxation Claims Tribunal.
The Tribunal is to be established within the Administrative Appeals Tribunal and will enable small taxation matters to be decided in a less expensive and less formal manner. The Tribunal will be able to consider matters up to $5,000. Claimants will pay a $50 non-refundable fee. There will be an emphasis on mediation in resolving these disputes.

The Government has also established a Special Adviser on Taxation within the Commonwealth Ombudsman's Office. The Special Adviser heads a team of taxation experts with a specific brief to investigate complaints about the Australian Taxation Office. This team will provide an independent and impartial investigation service. It will be well placed to assess technical complications in disputes between taxpayers and the Tax Office.

The Government is keen to see tribunals kept as a low-cost accessible means of dispute resolution. In tribunals, as in courts, parties should be discouraged from running up costs and causing delay. To this end, the Government will include a discretion in the Administrative Appeals Tribunal legislation to award costs against a party or its representative whose conduct of a case has deliberately caused extra cost to the other party.

THE FUTURE

Over recent years, the Administrative Appeals Tribunal and other merits review tribunals have taken steps to improve their procedures and increase community awareness of their operations. They have actively promoted the services they provide. They have adapted their procedures to enable people who are not represented to run their own cases. They have ensured that people of non-English-speaking backgrounds are assisted in a culturally sensitive manner. They also have explored alternative forms of resolving disputes, such as through mediation.

In acknowledging these initiatives and highlighting the Government's administrative law achievements, the Government recognises that there is no room for complacency in such matters. Efforts to further improve the administrative law system must be encouraged.

The Administrative Review Council, an independent advisory body established to review and make recommendations on administrative law matters, has been asked by the Government to conduct a major review of all Commonwealth merits review tribunals, including the Administrative Appeals Tribunal. The objective of the review is to ensure that those tribunals operate in an accessible and responsive manner, and provide a credible and effective form of review for people affected by Government decisions. The Administrative Review Council will be seeking to identify the best practices to be adopted, and recommend adjustments to the tribunal system that will enhance its performance.

At the same time, at the Government's request, the Council and the Australian Law Reform Commission are conducting a fundamental review of the purposes and principles of the Freedom of Information Act 1982. The aim of that review is to improve the ambit and operation of the Act so that people are better able to gain access to Government information.

CUSTOMER DISPUTE SCHEMES

The escalating cost of litigation and increased awareness by industry of the importance of the satisfied customer has led a number of industry sectors to develop their own complaints resolution mechanisms. These mechanisms range from well-funded, highly developed schemes with a high degree of independence, to relatively informal ad hoc mechanisms run directly by the industry itself. Customer dispute schemes, operated and funded by industry, can be a valuable low cost alternative to litigation. Examples include the Australian Banking Industry Ombudsman and the insurance industry complaints resolution schemes. Government plans to extend and improve such schemes are discussed in more detail elsewhere in this Statement.[3]

These initiatives will give people more choices about the means they use to resolve disputes and will increase people's level of satisfaction with the resolution of their legal problems. The significant increase in family law mediation and counselling services will be a real benefit to thousands of Australians to settle their family law matters in the most constructive way possible.

Increased access to mediation will also enable people to settle legal problems without undue expense or delay.

The Government is committed to ensuring that mediation is used appropriately and to best effect and is establishing and strengthening safeguards for consumers choosing mediation.


Endnotes

[1] See `Courts and Tribunals'

[2] See `Families'

[3] See `Consumer Protection'


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Modification Date: Wednesday, 24 May 1995