Mediation in Australia
A degree of controversy still surrounds characterising ADR as an ‘access to justice’ issue.
Whakawhanaungatanga is a Maori process for establishing relationships. In the following interview I explore the tradition, identity, trust-building, and conflict resolution with New Zealanders Hilary Unwin and Pereri Hathaway.
Mediation is now well-established in Australia particularly in the commercial jurisdictions of the states and territories. However it is still viewed as an unwelcome visitor by many in the legal profession and the judiciary.
(5/10/13)Tania Sourdin, Chinthaka Liyanage
It is clear that Online Dispute Resolution (ODR) has grown significantly in response to local and international factors within Australia over the past decade. This growth is partly attributable to a healthy Alternative Dispute Resolution (ADR) environment within Australia. The use of ADR in Australia is widespread and all Courts and Tribunals now have the power to mandatorily refer disputes to ADR processes.
(2/16/12) The Ministry of Children and Family Development British Columbia
An interview with an Aboriginal woman who talks about her experience with child protection mediation. She tells us how mediation helps both parents and child welfare workers who are unable to resolve a plan of care for a child, reach a decision together in a non-judgmental way.
Climate change is one of the greatest emerging threats to global peace and security. Among other impacts, climate change will exacerbate the scarcity of water, food, and other natural resources essential to human survival. One concern is that as these resources become scarcer, the frequency and severity of international disputes will increase. Thus, developing effective means for resolving international resource disputes is of critical global importance.
This paper highlights the journey of peace building in the context of prison rehabilitation. The intention of this paper is to attempt to align the cultural, spiritual, psychological and physical aspects of indigenous conflict resolution with a practical peace building application in one of the growing industries in the world, the prison system.
Andrew Schepard describes how Aboriginal tribes have an optimal process of dealing with child neglect and/or abuse. If abuse is reported, a family group conference may be called; they have the choice of opting out of the coercive court system, which he sees as a model approach.
In an effort to reduce the backlog of 500 native title claims, the Australian parliament has amended the Native Title Act to strengthen mediation and give the Federal Court power over the mediation process and the ability to deal with recalcitrant parties. One senator raised concerns about mediators being given coercive powers by the amendment, especially since the legislation does not define who can be a mediator or require any particular qualifications or accountability, while other senators felt the amendments did not go far enough.
SMH.com.au (September 14, 2009)
The New South Wales Court of Appeals in Newcastle City Council v. Wieland, NSWCA 113 (NSW, Australia 2009), concluded that court-ordered mediation expenses generally should be treated as legitimate costs of the proceedings, since the mediation is a required step. If the parties wish to ensure that each pays its own mediation costs, they must make that clear by agreement.
Mondaq (May 27, 2009) (Subscription Required)
A report on mediation in the Supreme and County courts in Australia shows that use of mediation is steadily increasing. All civil cases before the Supreme Court are now being sent to mediation, where judge-led mediations are being used. A pilot mediation program in Magistrates Court has been extended and expanded from all cases under A$10,000 to all those under A$40,000. The author of the report noted that 80% of mediation participants are satisfied with the process, but that some cases need to be referred to mediation earlier.
The Age (April 2, 2009)
Australia is pressing the International Cricket Council to include a mediation process in cases of racial conflict among players, following the Australian Football League which introduced a mediation code and won a U.N. award. Under Cricket Australia’s proposal, mediation would be given a chance to bring reconciliation between bickering players, and the matter would only proceed to a formal tribunal if mediation was not successful.
Yahoo India News (July 10, 2008)
A litigation funding company in Australia provides resources in carefully selected cases to individuals and small businesses involved in disputes with larger entities who may try to use their advantage in resources to obtain procedural wins or force unfair settlements. The funding company sees itself as helping to level power imbalances, but selects only cases it feels are likely to generate a good return. The managing director believes mediation is the best option for resolving business disputes, but that mediation works better when the smaller party has options.
Sydney Morning Herald (June 7, 2008)
Australian Supreme and County Courts will be able to send cases to mediation for the first time in a pilot project being started in Victoria, which will include large commercial disputes. Based on a Canadian model, senior judges will be involved to give the mediation process their imprimatur. The project is allocated A$3.7 million in the current budget package for the judicial system. In addition, the budget includes a A$5.8 million expansion of the mediation program in Magistrate Court and A$6.2 million to expand alternative dispute resolution regionally in Victoria.
The Age (May 4, 2008)
Bond University's eagerly awaited Dispute Resolution Centre's April Newsletter is just out!Edited by John Wade, the letter always delivers sophisticated content for the experienced mediator.There's a good article on Overconfidence at mediation and in a follow up to my popular post The Secrets of Successful (and Unsuccessful) Mediators - a completed Questionnaire for Advanced Mediators that John gives to experienced mediators in his regular Advanced Mediation Courses about what they see and do...
Australia’s longest-serving attorney general is urging that mediation “take center stage” in the reforms of Victoria’s legal system which are under way. The Victorian Law Reform Commission proposed introducing pre-action protocols, which may include mandatory mediation, in recommendations presented to the attorney general.
The Australian (March 7, 2008)
The Victorian Small Business Commission uses its broad investigative powers and mediation to end unfair market practices and bullying of small businesses by larger companies. The Australian agency has increasingly focused on franchising relationships, along with retail tenancy disputes and other contract issues. The Commission encourages mediation as a way to resolve conflicts without necessarily ruining relationships. The Commission has dealt with 4,000 complaints since the office opened in 2003 and resolved about 80% before or at mediation. The Commission also encourages companies to avoid conflict by utilizing specified practices to sustain good working relationships.
My Small Business (December 17, 2007)
Between November 2005 and June 2007, a team from The Keystone Center helped organize and implement a multiparty negotiation process aimed at increased redress for people affected by river contamination from the Ok Tedi Mine in Papua New Guinea (PNG). Ok Tedi is often cited as one of the worst man-made environmental disasters in the world. It is also a true sustainability dilemma. The mine produces 20% of PNG’s gross domestic product, but it has also disrupted the traditional food webs and lives of more than 50,000 people by putting 90,000 tons of rock waste and tailings per day into the Fly River system. After 18 months of effort, a major benchmark was accomplished. Delegates of the nine affected regions along the river, the mining company, the government, and others concluded a Memorandum of Agreement (MOA) that will ultimately give the people in the impacted area about 1.1 billion kina (roughly US$350 million) in funds, projects, and services.
Prof. John Wade's latest article on Persuasion in Negotiation and Mediation is fresh out today.Typically, it's 30 something pages are brimming with generous take-aways.John provides a framework for common patterns of behaviour and persuasion observed in high conflict negotiations in civil and family disputes, often including legal representatives.The article sets out:• Some introductory boundaries to the topic of “persuasion”• A composite model of a persuasive lawyer...
Western Australia’s Supreme Court began a pilot program to mediate criminal cases last November, and is now expanding its “criminal case conferencing” program by covering more serious crimes, including murder and armed robbery, and appointing a second mediator. Mediation occurs only with the consent of the accused and victims (or secondary victims in the case of murder). While possible outcomes of mediation include agreements to substitute charges, obtaining admissions that will shorten the trial, and solutions that avoid trial altogether, the program is not plea bargaining. Further, as with civil mediation, mediation communications cannot be used in any later trial and the mediation is entirely separate from the court proceedings. The Supreme Court is the highest court in the state and deals with serious criminal charges and large civil cases.
Australian (July 13, 2007)(Subscription Required)
I mention Prof. John Wade a lot in this blog for a couple of reasons.
First, he is wonderfully knowledgeable about all things mediation, but more than that - he is one of my favorite types of people - he is a list junkie... he has 5 ways to do this, 10 ways to do that...
Prof. Wade's lists are adorned with alliterative titles like Dobermans and Diplomats (a list of 17 impasse breaking strategies) or How to respond when eager, expensive, entrenched expert egos escalate enmity (a list of...
With arbitration becoming more like litigation, more reinsurers in Australia are turning to clauses in their contracts with insurers that require disputes to be resolved through mediation or expert determination. The trend is toward including both mediation and arbitration clauses in reinsurance contracts, with arbitration occurring only if mediation fails fully to resolve a dispute. Australian courts are encouraging parties to use mediation, which influences the way contracts are drafted. However, parties need to understand the benefits and limitations of mediation and other forms of alternative dispute resolution before incorporating the provisions in contracts. Reinsurers may be more comfortable incorporating mediation clauses in contracts with sophisticated insurers and relying on arbitration provisions with those less sophisticated.
Mondaq (October 31, 2006)
The Australian government has selected a firm to provide mediation services throughout the country to assist the Produce and Grocery Industry Ombudsman. The Produce and Grocery Industry receives subsidized dispute resolution services under its Code. The mediation firm’s contract is overseen by the Department of Industry, Tourism and Industry, which is instituting a nationwide public awareness campaign of the Ombudsman and the Code.
Industry, Tourism and Resources, Australia (August 31, 2006)
Participants from India, Australia, Malaysia, Japan, Hong Kong, Cambodia, Vietnam and the Philippines attended the Asia Pacific Conference on Contemporary Trends in Mediation and Arbitration in Kuala Lumpur in mid-July. The keynote address by Malaysian Chief Justice Ahmad Fairuz stated that his country is considering mediation legislation which would cover both voluntary and court-directed mediation in order to reduce court backlogs. The Chief Justice emphasized that courts around the world struggle to keep up with expanding caseloads and noted the successful use of mediation in Singapore, the United Kingdom, Canada and Australia. The conference was organized by the International Islamic University Malaysia and an arbitration center.
Bernama General News (July 18, 2006) (Subscription Required)
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An intense three-day mediation resulted in the return to Huon Corporation of business assets by the company’s managing director, Charles Shultz. Mr. Shultz had transferred the assets to private trusts while putting Huon Corporation in receivership last month. The return of the assets will enable the company to satisfy obligations to employees of its three businesses and potentially to sell the businesses as going concerns. The successful court-ordered mediation avoided a costly pending action in the Australian Supreme Court.
The Advertiser (August 3, 2006); The Advertiser (Bendigo) (August 2, 2006)