l1: spectrum of dispute resolution options web viewtactical manoeuvring. ... family court and...

Table of Contents

L1: SPECTRUM OF DISPUTE RESOLUTION OPTIONS................................................................................3VARIABLES IN THE SPECTRUM......................................................................................................................3

L2: THE ADVERSARIAL SYSTEM........................................................................................................................... 5LITIGATION.............................................................................................................................................................. 5

L3: NEGOTIATION......................................................................................................................................................... 7DEFINITION............................................................................................................................................................. 7KNOWLEDGE & SKILLS REQUIRED TO BE AN EFFECTIVE NEGOTIATOR..................................8MODELS OF NEGOTIATION.............................................................................................................................. 9POSITIONS v INTERESTS................................................................................................................................... 9MEDIUMS USED TO NEGOTIATE.................................................................................................................10ETHICAL OBLIGATIONS...................................................................................................................................10AGENDA.................................................................................................................................................................. 10INEQUALITY OF BARGAINING POWER....................................................................................................10

L4: MEDIATION............................................................................................................................................................ 11DEFINITION AND PURPOSE...........................................................................................................................11THE MEDIATION PROCESS............................................................................................................................ 11BOULLE’S 4 MODELS OF MEDIATION.......................................................................................................13ROLE OF LAWYERS IN MEDIATION...........................................................................................................14

L5: CONCILIATION..................................................................................................................................................... 15PLAIN ENGLISH DEFINITIONS..................................................................................................................... 15NADRAC DEFINITION.......................................................................................................................................15RESIDENTIAL TENANCY AUTHORITY......................................................................................................15CONCILIATOR CORE COMPETENCIES.......................................................................................................16LAWYERS IN CONCILIATION.........................................................................................................................16

L5: ARBITRATION...................................................................................................................................................... 17NADRAC DEFINITION.......................................................................................................................................17KEY FEATURES OF ARBITRATION............................................................................................................. 17ARBITRATION vs EXPERT APPRAISAL.....................................................................................................17UNIFORM ARBITRATION LEGISLATION..................................................................................................18ADVANTAGES AND DISADVANTAGES OF ARBITRATION...............................................................18

L6: COMMUNICATION SKILLS..............................................................................................................................19TYPES OF COMMUNICATORS........................................................................................................................19COMMUNICATION STRATEGIES..................................................................................................................19COMMUNICATION TECHNIQUES................................................................................................................ 20

L7: UNDERSTANDING DISPUTES........................................................................................................ 21WHAT IS CONFLICT........................................................................................................................................... 21TYPES OF CONFLICT......................................................................................................................................... 21DIAGNOSIS OF THE CONFLICT.....................................................................................................................22

L8: ISSUES FOR VULNERABLE PARTICIPANTS............................................................................... 23POWER ISSUES.................................................................................................................................................... 23ASSUMPTIONS ABOUT POWER IN DR CONTEXTS..............................................................................23

SOURCES OF POWER.........................................................................................................................................23CONTEXTS FOR POWER IMBALANCES.....................................................................................................24MEDIATOR’S ROLE WHERE POWER IMBALANCES............................................................................24USING POWER – FROM POWER TO PERSUASION...............................................................................24RELEVANCE OF CULTURE.............................................................................................................................. 24

L9: RESTORATIVE JUSTICE................................................................................................................................... 25POLICY OBJECTIVES OF ADR.........................................................................................................................25RESTORATIVE JUSTICE....................................................................................................................................25JUSTICE MODEL vs WELFARE MODEL.....................................................................................................25RESTORATIVE JUSTICE AS A RESPONSE TO THE JM AND WM.....................................................25VICTIM-OFFENDER MEDIATION AS A MANIFESTATION OF RJ....................................................26IMPORTANCE OF RJ IN YOUTH CONTEXT..............................................................................................26FACING THE DEMONS – DVD........................................................................................................................ 26

L10: FAMILY LAW AND DISPUTE RESOLUTION............................................................................27CHARACTERISTICS OF FAMILY LAW DISPUTES..................................................................................27SPECTRUM OF FAMILY DISPUTE RESOLUTION...................................................................................27RE F LITIGANT IN PERSON..............................................................................................................................27WAYS TO CATEGORIES DISPUTE RESOLUTION PROCESSES.........................................................27PRIMARY PROCESSES.......................................................................................................................................28FAMILY RELATIONSHIP CENTRES (FRC)................................................................................................28CONFIDENTIALITY............................................................................................................................................ 28FACILITATIVE MEDIATION............................................................................................................................29ADVISORY MEDIATION....................................................................................................................................29FAMILY LAW DR REQUIREMENTS.............................................................................................................29LESS ADVERSARIAL TRIAL (LAT)...............................................................................................................30LEGAL AID CONFERENCES.............................................................................................................................30ARBITRATION...................................................................................................................................................... 30

L11: DIAGNOSING DISPUTES............................................................................................................................... 33SELECTING A PROCESS....................................................................................................................................33A Matrix for Assessing the Suitability of Processes for Disputes..................................................34WHEN IS MEDIATION NOT APPROPRIATE............................................................................................35DRAFTING DR CLAUSES.................................................................................................................................. 35MOST COMMON MISTAKES BY LAWYER REPRESENTATIVES......................................................35THE 5 HUMBLE HYPOTHESIS.......................................................................................................................357 PRINCIPLES FOR ADVISING.......................................................................................................................36

L12: ETHICS................................................................................................................................................................... 36KEY ISSUES IN NON-ADVERSARIAL PRACTICE....................................................................................36ADR MOVEMENT – UNREGULATED...........................................................................................................36

L1: SPECTRUM OF DISPUTE RESOLUTION OPTIONS

VARIABLES IN THE SPECTRUM

There are many different variables that determine a dispute resolution process. Some are:

Time it will take to reach a conclusion

Cost of the process to parties

Degree of formality involved

Level of applicability of procedural rules

Level of preparation required

Level of formal documentation associated with the process

Level of legal representation allowed/required

Degree of third party intervention regarding the final decision/settlement outcome

Degree of consensuality – eg. whether parties enter into option voluntarily or whether have been ordered by a court

Degree of formalityDegree of informality

Third party imposes solution

Parties reach solution themselves

Facilitative mediation Arbitration CourtMed-arbCase-appraisal

Evaluative mediationMediationNegotiationWalking

L2: THE ADVERSARIAL SYSTEM

LITIGATION

A way of resolving legal disputes by taking the dispute to court

Applicant / plaintiff makes application and defendant responds

Format:

Procedural steps Rules of Evidence Discovery process

Filing / serving documents

There are many court events along the way: mentions, interim hearing, before the final trial / hearing in court and decision (court order)

Arguments in favour of party control Arguments against party control

Liberalism – reflects role of state; individual control and maintenance of rights; zone of privacy around private domain

More cost-effective for the State Maintains judges role as independent and

objective (as parties are in control)

Only information presented is what parties want presented

Becomes “contest” between advocates Combative nature of adversarial proceedings

escalates conflict Would be advantages in earlier involvement of the

judge Expensive for parties

Advantages of Adversarial System Disadvantages of Adversarial System

Opportunity for both parties to present case Parties get “their day in court” Procedural protections: rules of evidence The ability to test statements and information

in cross-examination Openly conducted hearing

“fairness” of process Individual rights Third party makes a decision for the parties Independent and impartial adjudication Creates precedent Decision legally binding

Can be enforced Third party can review outcome to

ensure just and equitable

Law Council ALRC89 (1999)

Escalates conflict Labour intensive: expensive Time consuming Long court waiting lists Complicated

documents concepts

Frustrations with rules of evidence/ procedure Tactical manoeuvring Bias and unreliable witnesses Doctrine of precedent limiting Both may not be happy with the decision Unfairness if:

One party unrepresented Inequality of legal representation

Difficulties for self-represented litigants Parties don’t always comply with court orders Discourages compromise and looking to the future

Law Council ALRC89 (1999)

Adversarial system: A contest Party controlled dispute: the parties institute proceedings, define the issues to be

determined and each has the opportunity to present his/her argument (Law Council ALRC89 (1999))

Role of judge: to be neutral and objective and to determine the outcome In Australia, Family Court and tribunals have moved towards more inquisitorial system

Role of Legal Representatives in Adversarial System: Only present what information will advance their client’s case Object is to “win” on behalf of client Present the evidence (prepare court docs, subpoena witnesses, conduct EIC and XE) However, their role is subject to a duty to the court and a duty to the client

Role of judge in Adversarial System: Neutral, independent and impartial umpire Ensure fair and proper procedures followed Decide questions of law Decide questions of fact (when no jury) In the main, does not question witnesses

Why may a client want to avoid litigation? Fear of going to court and giving evidence Legal costs Unable to obtain legal aid Avoid bad publicity / loss of reputation Public embarrassment (violence and alcohol / fraud / illegal) Disclosure of undesirable information (eg. tax evasion) Client wishes to avoid time and stress

Parties to a dispute in the adversarial system: View each other as adversaries Focus on the past Seek to establish the truth of objective facts Seek to prove their story is right Seek to lay blame Seek to win at the expense of the other party

This escalates the conflict as: The dispute is being approached from a positional point of view; Parties are magnifying points of difference by focusing on the past

L3: NEGOTIATION

DEFINITION

Negotiation is a process in which two or more people engage in discussions to see if they can reach agreement.

Subject of Neg Things to Note / Positions v Interests

An orange Two people disputing, both want the orange – could cut it in half Think about the elements of the orange, why they want it – their

interest One may want it for the rind, one for the juice! = agreement!

A child Emotional negotiation Only one child (not like money which can be replaced) Really important to look at interests, not positions

Money More of a concrete thing, a number of options

In a legal context: Clients negotiating together approach lawyers

Lawyers negotiating on behalf of their clients

Lawyers and clients together at a forum, negotiating towards settlement (mediation / conciliation)

Why is learning about negotiation important? Negotiating is an important skill as it can mean the difference between reaching an

agreement or not, achieving a fair outcome or not and the client feeling supported through the negotiation process or not.

Advantages of Negotiation Disadvantages of Negotiation

Parties with their lawyers are in best position to assess proposed solutions

Compromise often offers parties at least some of what they want

(note: court may not give them any of what they want)

Parties might not resolve all issues but may narrow them

If adequate preparation not carried out a party can agree to a settlement outcome well below what a court may order

May not have valuations, adequate medical evidence etc to properly assess case

Lawyer may not know the law and be able to bargain effectively

A party may agree to an unfair agreement due to inequality of bargaining power/coercion

A party may feel that they were pushed too far or coerced into an agreement by their lawyer

KNOWLEDGE & SKILLS REQUIRED TO BE AN EFFECTIVE NEGOTIATOR

Knowledge of: Client, their underlying interests, personality, strengths and weaknesses, bottom line Client’s factual case The relevant law and how to apply it to the facts Court procedure so that correct documents filed and discovery completed Dispute resolution eg. negotiation models, structure to most effectively negotiate

Negotiation and professional ethics Any existing or possible power imbalances Any cultural negotiation differences

Dispute resolution and interpersonal skills: Thorough and thoughtful preparation Identifying objectives Being realistic about outcomes Option generation Identifying underlying interests (aka hidden agendas) Meeting and greeting and establishing a negotiation ‘atmosphere’ Understanding the other party’s needs and interests Picking up any hidden issues/agendas Communication skills:

Interpersonal skills: eg. open body language and eye contact Listening actively and effectively Expressing yourself clearly and assertively Controlling anger and emotions eg. reframing and summarising

Good negotiation skills include “the 3 A’s” ( Spegal et al ) : Attitude :

being positive, confident, believing that a successful outcome is possible and being prepared to work towards it;

Awareness : sensitivity to messages coming from other side, being alert to what other person

is saying and not saying (listening)

Accountability : as a negotiator you are accountable for the negotiation’s outcome: preparation,

flexibility and skill, evaluating the process and what you could do better next time ie. being a reflective learner.

MODELS OF NEGOTIATION

Type IsAdversarial Win / lose

Uncompromising

Distributive Division of what needs to be negotiated to various parties Positional and still quite adversarial

Integrative Quite positional, but seeing whether there can be some compromise Based on trade-offs

Principled Looking at interests and trying to come up with a mutually agreeable decisions

Sometimes may start with principled, but may have to incorporate other models – shouldn’t start off with the adversarial model!

Limitations of the principled model ( Spencer and Hardy ) :

Not all scenarios may fit this model

Does not take into account that one or both parties may not be interested in finding a mutually agreeable solution

- In such cases, parties may not be prepared to share relevant information so that a fair outcome can be achieved

POSITIONS V INTERESTS

Interest : statement of what client wants

Position : underlying concerns / things that client really want to achieve (WHY they want something)

Eg. orange: what they want is the orange why they want it, either for the rind or juice

Booth v Bosworth :

If had looked at interests, may have been decided differently: Conservationists wanted the bats to stop being killed Lychee farmers wanted the bats not to get the lychees

MEDIUMS USED TO NEGOTIATE

Advantages of In-Person Negotiation Disadvantages of In-Person Negotiation

Parties can see each other’s facial expressions and body language.

Can create more direct communication channels: not have difficulties of misunderstandings that may occur when communicating via letter, email, and messaging.

Can assist with overcoming communication problems and reducing conflict.

May be more effective in achieving an outcome that covers all or many underlying interests.

May be threatening when there are power imbalances.

May be unsafe when violence has been a factor.

Can be used as a tactic by one party to coerce other party to unfair outcome:

eg. using intimidation, threatening behaviour etc

May be too stressful for one party. May be inconvenient/ too expensive for

geographic or other reasons.

ETHICAL OBLIGATIONS

Cannot lie, mislead, exaggerate or not disclose relevant information Some legitimate tactics that can be used are:

Preparation of case to give the upper hand. Investigate options prior to going into negotiation and reality test them with client Ensure that an agenda is created that covers ALL of your client’s interests Prioritise the agenda so that client’s key interests are first (in case you run out of

time/ goodwill) Be assertive and use reframing and summarising skills

AGENDA

List of issues parties need to be resolved Forms a structure for the negotiation Issues need to be prioritised

INEQUALITY OF BARGAINING POWER

Can be caused by:

Seniority / familiarity with case / levels of aggression (lawyers) Cultural / Gender issues Violence Personality issues: levels of assertiveness Timing Knowledge Resources / Possession Acknowledgement that issues can arise of: party vulnerability, inequality of bargaining

positions and potential injustices in terms of process and outcomes

Eg. different cultures communicate in different ways and so negotiate in different way

L4: MEDIATION

DEFINITION AND PURPOSE

A third party supports the parties in a dispute to negotiate a mutually satisfactory outcome

Purpose: Party self-determination Empowerment Remedial imaginations Interests can be served, positions can be contextualised / broken down

THE MEDIATION PROCESS

Pre-Mediation / Intake Phase: Takes place in many mediation processes

Intake process undertaken by either: Mediator or Administrative officer Eg. legislative requirements to undertake intake in family law

Prior meeting/s / telephone conversation/s to: Understand dispute Ensure process suitable Discussion of process and costs Reading and signing re Agreement to Mediate Ensure parties come prepared

Mediation Process – First Steps: Preliminaries : welcome and introductions

Mediator’s opening statement Explain process and role of private meetings Explain objectives Clarify role of mediator and parties Clarify non-adversarial role of lawyers (if present) Set some guidelines for conduct Explain confidentiality (as far as law allows) Time-frame and any time restraints If agreement reached option of written agreement

Parties’ statements One at a time the parties will talk about:

- The background to the dispute; and - What they want to sort out at the mediation

Mediator uses questions to elicit their underlying interests Goal that each party hears the other party’s perspective of the dispute

Can assist to resolve communication problems

Identifying areas of common ground (isolating the issues) Agenda : defining and prioritising the issues

Mediator works out with the parties a list of common issues that will form the structure for the meeting

They are worked out based on interests not positions The agenda items should be:

- mutual - neutral

They can be framed in the form of questions (eg. “Where will the children live”) It is important that your client’s most important issues are at the top – in case run

out of time / goodwill

Mediation Process – Problem-solving Steps: Mediator will aim to engage parties in constructive communication.

Option generation Development and exploration of options Evaluation and selection of options

Bargaining/ Negotiation phase In some models will commence as interest-based Later distributive/integrative may take over particularly towards the end!

Mediation Process – Separate Meetings: Can occur at any time after agenda has been agreed upon

Break the tension: time and space

Useful for advancing aspects of client’s case that will further their interests

Evaluative mediator: talk to client about prospects if case proceeds to court Pressure to settle! CAUTION

Opportunity to “reality test” proposals

Can include “significant others”

Mediation Process – Final Phase: Final decision-making

Recording the decisions Usually written and signed by parties and their lawyers (if lawyers present) Lawyers should ensure client understands agreement and implications

Closing statement by mediator

Termination of mediation

BOULLE’S 4 MODELS OF MEDIATION

1. Facilitative: one we’ve talked through – traditional model

Mediator = neutral, impartial third party Decision making and solution generation is left mainly with parties Want to have at least partial agreement to some issues Mediator’s role: process role Trying to achieve: Outcome

2 / 3. Evaluative (/ Settlement): Mediator will make suggestions, within their competence, can’t give legal advice

etc outside competence Will use expertise Sort of mediation that increasingly market is wanting Parties want to be able to say “now put an evaluative hat on and tell us what

would happen if it went to court” Then, if still not working, might want mediator to make decision for them Mediators are jumping in… Would need to have different system of ethical

conduct for mediators then Trying to achieve: Outcome

4. Transformative: What facilitative does anyway? How parties in disputes spiral down and lose control of how they can manage Trans about transforming that loss of control back to parties having control over

dispute Not actually focused on getting outcome – outcome might be that parties are

transformed in how they communicate with each other, and no problem/dispute has actually been solved, contrasted with facilitative which really is problem-solving

Some are cynical In four hours how much can you really transform the parties…? Mediator neutral to outcome but not neutral in transforming the parties Also narrative model – even more therapeutic Trying to achieve: Skills for future

Also: Narrative: Mediator openly acknowledge not neutral, engaged with parties, work with them

to unpack dispute and build up new narrative to move forward Trying to achieve: More therapeutic, reconstruct positive way forward

ROLE OF LAWYERS IN MEDIATION

Lawyers may or may not be present during the mediation. Their functions can be broken down into before, after and during.

Lawyer’s role before mediation: Suitability of mediation

Ensure appropriate dispute resolution process- There is a duty to inform client of DR options – derived from common law,

statutory obligation, ethical duty and/or court practice directions Advocate for appropriate structure to suit client

Process advice: steps in dispute resolution process

Content advice: legal advice

Support function: assisting and supporting client towards the process

Preparing/coaching client Required role client will play Coach client in readiness for this role Assist client prepare opening statement Attend to any information gathering/documents client needs Assess BATNA (what is the best result we can hope to achieve if we don’t settle?)

and WATNA (what is the worst outcome that may occur if we don’t settle?)

Preparing documents/evidence

Discussing and signing an Agreement to Mediate

Lawyer’s role after mediation: Lawyer debriefing client

Process Content

Explanation of agreement reached and the legal implications

Q of making the agreement legally binding How this can happen? What are the legal consequences if the agreement is then breached?

Dealing with second thoughts/disillusionment???

What if agreement has not been reached? What are our options now?

Consensuality: There should be no compulsion to reach agreement. The reality is that much mediation these days is that mandated by statute or court ordered

Informed consent: Required in order to make self-determination real Lawyers have a significant role in assisting to ensure informed consent is achieved The parties and mediators also have responsibilities

Some mediators have ethical concerns re assisting informed consent and breaching neutrality / impartiality

L5: CONCILIATION

PLAIN ENGLISH DEFINITIONS

Informal discussions between parties and an external agency to void, resolve or manage a dispute

The state of manifesting goodwill and cooperation after being reconciled

NADRAC DEFINITION

A process in which the parties to a dispute, with the assistance of a conciliator, identify the issues, develop options, consider alternative and endeavour to reach agreement.

The conciliator may have an advisory role but not a determinative role. May advise on the content of the dispute May make suggestions for settlement May give advice on likely settlement terms May actively encourage parties to settle

Similarities between Mediation* and Conciliation

Differences between Mediation* and Conciliation

Mediator and conciliator are an impartial third party

Both processes identify disputed issues, develop options, consider alternatives and try to reach an agreement

Neither mediation or conciliation are determinative processes

Conciliator may advise on likely outcomes, but won’t decide dispute

Both mediator and conciliator determine the process to be used

Conciliator may have an advisory role regarding the content of the dispute – mediator does not

Conciliator may advise on the outcome of a dispute

Conciliator may suggest terms of settlement

Conciliator may give expert advice on potential court outcomes

Conciliator may actively encourage parties to reach an agreement

Mediator won’t push for agreement

* Note: Referring to facilitative mediation; Evaluative mediation is more similar to conciliation, but it may be seen as a

contradiction to pure mediation definition

RESIDENTIAL TENANCY AUTHORITY

Shift from mediation to conciliation (in landlord / tenant disputes) because:

Parties needed information about their legal rights so could make informed decisions

Mediation took too long

Conciliator could use active strategies to help parties settle (eg. suggest options)

CONCILIATOR CORE COMPETENCIES

Analysis Assess the issues Seek out necessary information

Objective empathy Establish rapport Focus parties on interests

Inventiveness and problem-solving Interpersonal skills Strategic direction Legislative framework Expert knowledge Multiple roles Personal flexibility Self-efficacy: personal power and psychological strength Managing expectations

LAWYERS IN CONCILIATION

Advantages of Lawyers Disadvantages of Lawyers

Support role to client Can model co-operative non-adversarial

negotiation behaviour Assist parties:

provide relevant information (documents etc)

to focus on interests with option generation integrative bargaining reality testing with terms of settlement

Draft the agreement: explain the agreement to client consequences of non-compliance file the agreement in court

‘Shadow of the law’ Advise on what the law is ie. legal rights So client can make informed decision Stop client agreeing to unrealistic settlement

maintain assertiveness not let them be worn down by people and

process; or At least talk them through this and reality test Deal with second thoughts / regrets

Particularly: If not familiar with dispute resolution

process If not familiar with the relevant law

Attempt to interfere with process and structure

Cut through opening statements Request shuttle conciliation in

separate rooms

Can model adversarial behaviour

Can entrench positions (particularly unrealistic position if doesn’t know the law well enough)

If inexperienced won’t be assertive enough with unrealistic client

Can give up on the negotiation process

Can be impatient with time

L5: ARBITRATION

NADRAC DEFINITION

A process in which the parties to a dispute present arguments and evidence to an arbitrator who makes a determination.

Determinative DR processes involve a DR practitioner evaluating the dispute and making a determination. The decision made by the practitioner is called an award.

Note : arbitration is most commonly used in commercial contexts

KEY FEATURES OF ARBITRATION

Adversarial process Private Can be voluntary or mandatory Impartial third party (arbitrator) provides a decision based on law Parties (usually) select the arbitrator Arbitrator is often an expert in the field of the dispute (a barrister or retired judge) In Australia, governed by statute

Similarities betweenArbitration & Litigation

Differences betweenArbitration & Litigation

Adversarial Impartial third party makes binding

decision Lawyers often involved to argue case A formal process where parties may

agree to have the rules of evidence apply

Similarities between Arbitration and Litigation has seen debates as to whether Arbitration should be classified as ADR.

With the exception of court-ordered arbitration, requires the consent of parties

Private (as opposed to a public hearing in a court)

Arbitrator usually selected by parties (cf: judge)

Result binding only on the parties to the case (no precedential value)

ARBITRATION VS EXPERT APPRAISAL

Expert appraisal is a process in which a dispute resolution practitioner, chosen on the basis of their expert knowledge of the subject matter (the expert appraiser), investigates the dispute.

The appraiser then provides advice on the facts and possible and desirable outcomes and the means whereby these may be achieved.

How are appraisals different to arbitration? No determination is given by the appraiser

Expert appraisals are not binding (although parties can choose to be bound by an expert appraisal but then it’s called an expert determination.

UNIFORM ARBITRATION LEGISLATION

Features of the Commercial Arbitration Act 1990 (Qld): Voluntary, Choice of expert arbitrator with expertise, Private, No formal reporting, no precedential effect, Not bound by formal rules of evidence, Awards are binding, Courts reserve right to determine prelim points of law, Limited grounds for judicial review.

Limited grounds for review: On a point of law if both parties consent or with leave of the Supreme Court (s 38) Misconduct or improper procurement of an award (s 42)

ADVANTAGES AND DISADVANTAGES OF ARBITRATION

Advantages of Arbitration Disadvantages of Arbitration

Party control – ability to present views, input re process, choice of third party decision-maker.

Private Generally quicker and cheaper than

court Final enforceable decision which lies in

the hands of an impartial arbitrator Objective process – expert evidence

possible, third-party decision maker. Legal representation addresses power

imbalances

Achieving an outcome does not depend on the goodwill or cooperation of parties

Limited applications - mainly relevant to commercial disputes

Process favours wealthy as often involves substantial costs and the use of advocates

Objective, legalistic nature fails to adequately address conflicts where there are personal or emotional issues that are relevant

Adversarial process (although arbitrator can take on a more inquisitorial role than a judge)

Limited scope to monitor extensive arbitrator power (danger of abuse of power)

Thought: Is arbitration just a private form of litigation?

L6: COMMUNICATION SKILLS

TYPES OF COMMUNICATORS

Conscientious: Introverted and task orientated Needs high standards, to be appreciated Fear criticism and imperfection Reserved and focused on immediate task Systematic approach to work Prefer to plan for change Can be cautious and inflexible Need help to adapt and think creatively

Director: Extroverted and task orientated Driven by results, recognition and

challenges Confident, takes the lead May appear arrogant May use adversarial approaches Not always good team players

Stabiliser: Introverted and people orientated Reserved, but work well in teams Accommodating of others Slow to recover if hurt Prefer steady vs sudden change Need security, fear isolation and standing

out Patent, loyal tactful May be prone to procrastination

Influencer: Extroverted and people-orientated Like change, new ideas, cooperation Fear disapproval Outgoing, enthusiastic, optimistic Big picture orientated, not good on detail May appear disorganised May speak before they think / talk to much

COMMUNICATION STRATEGIES

Non-verbal communication 84% of communication is non-verbal

Posture

Eye contact

Use of voice (tone, pace, vocal variation)

Body language

Active listening Maintain regular eye contact

Attending skills: a posture of involvement, appropriate body motion, eye contact

Show you are listening with nods, mms

Focus on discovering client’s interests

Use communication techniques [see below]

Focus on interests not positions Interest : statement of what client wants

Position : underlying concerns / things that client really want to achieve (WHY they want something)

COMMUNICATION TECHNIQUES

Reflective listening : Show empathy, acknowledge feelings

Deal with client’s feelings as well as the content

Give them appropriate amount of time to vent their feelings

Use eye contact and open body language to show interest

Summarising : Summarising key points (legal and non-legal concerns) at appropriate times

Fogging : agreeing with all or some of the client’s statement

Broken record : repeating same thing over and over until person does what you ask

Reframing : Taking what someone has said and restating it in a way that it moves them

forward in the DR

Removing emotive language, reframing in a positive way

Have to be careful that client doesn’t think you aren’t listening and are just putting a positive spin on something they’re really negative about

Reframing is used not only to change the words being used but also the context of the party’s statement (Boulle)

- When done successfully, it can lead to a change in perspective or perception which can lead to changed behaviour (Boulle)

Objectives of reframing :- To remove the “sting” / detoxify the statement- Shifting from position to interest- Mutualising the problem- Moving from negative to positive perception

Paraphrasing : Relating back to someone what they have said

Shows you are listening and helps them move to next point

Questions : Open: various answers, options to give a long answer

Closed: short answer, often yes or no

L7: UNDERSTANDING DISPUTES

WHAT IS CONFLICT

State of negative feelings such as contempt, anger, fear or distrust (Sourdin)

Conflict can be a positive thing when it: Raises new ideas Provokes establishment of different, new or better ways of doing things When it is dealt with positively to be a catalyst for opportunity, progress or change

Difference between conflict and a dispute: A dispute is a manifestation of a conflict

In DR process, the underlying conflict cannot always be healed or resolved

Some interventions aim to address the conflict in order to reduce disputes (eg. transformative mediation / counselling)

TYPES OF CONFLICT

Data / Information Conflict: Lack of information:

Misinformation

Different Views on what is relevant Interpretations of data Assessment procedures

Intervention : Reach agreement on what information is important Agree on process to collect that information Obtain correct information Develop common criteria to assess information Use third party experts

Interest / Goals Conflict: Parties have different goals / objectives

Can’t achieve them without assistance from each other Eg. Father wants to maintain a relationship with daughter, mother does not want

father to see her

Interventions : Focus on interests, not positions Look for objective criteria Develop solutions that address the needs of all Search for ways to expand options

Develop trade-offs to satisfy interests of different strengths

Structural Conflict: Unequal access to authority, information, resources, professional advice or time

Eg. One party legally represented, other party not – McLibel case Geographic, physical or environmental factors that hinder cooperation

Eg. Parents separated and one moves interstate, other parent wants contact, what options are there?

Time constraints Interventions :

Equal access to authority, information, resources, professional advice, time Ensure fair decision making process Interest based bargaining cf positional Change geographic, environmental factors

Relationship Conflict: Strong emotions

Eg. Don’t trust ex to keep to an agreement, believe they always break promises Misperceptions or stereotypes / poor communication / the grieving process patterns of

negative behaviour Eg. negative intimacy

Interventions : Allow expression of emotions Acknowledge feelings May need to control expression of emotions through procedure / ground rules /

private meetings Avoid negativity through control of process

Value Conflict: Competing ideologies, world views, religious and cultural values Different basic assumptions about life and the universe Different parenting styles, ways of life (lifestyle choices), morals Interventions :

Can each live with the other’s values? Search for overarching goals that all parties shares – ie. what are their interests?

DIAGNOSIS OF THE CONFLICT

Most conflicts have multiple causes – identify the central causes (often done by trial and error) generating theories about the cause/s of conflict and testing them

Conflict is generally mistaken, genuine or contrived: Mistaken : real perception of conflict based on miscommunication / misinformation Genuine : incompatible gaols, values or personality disputes Contrived : party prolonging the conflict for revenge, cost to other party, to

maintain relationship with other party (negative intimacy) Possible responses to conflict : to avoid, accommodate, compete, compromise,

collaborate

Ways to resolve conflict : identify the type of conflict, identify client’s response, then choose appropriate dispute resolution process

L8: ISSUES FOR VULNERABLE PARTICIPANTS

POWER ISSUES

Clients (or opponents) with power resulting from knowledge, wealth, societal standing, education or language

Parties (or opponents) who lack power in terms of knowledge, wealth, societal standing, education or language

Parties who are seeking your assistance to resolve their dispute are giving you power, and respecting your knowledge and expertise

There is real negotiating power vs illusion of power (Fisher)

ASSUMPTIONS ABOUT POWER IN DR CONTEXTS

Boulle : Power disparities almost always exist Contexts for power imbalances are many and different Power is complex – even where imbalances, everyone has some sort of power The perception of power can be more important that the objective conditions of power

SOURCES OF POWER

Financial Knowledge / understanding Ability to harm or reward: eg. employer / employee relationship Access to authority (including media) Legal or moral Reputational needs: may have reputation to uphold BATNA / WATNA DR Context: the person who gets to speak first in, eg, mediation

Spegel : Knowledge power : This consists of knowledge of the other party, expert knowledge,

access to expert knowledge, independent expertise to support your argument such as an expert witness, authority to support your argument such as legislation, precedent, and evidence of industry practice.

Process power : Ppower in relation to the negotiating environment (such as when and where negotiations take place, who attends, who sets the agenda etc), power in relation to coalition building (that is, identifying and coopting allies outside the dispute to support you), power in relation to the planning of concession manoeuvres (that is, the ability to work out what you can live without in order to get what you want), power in relation to generating options which will appeal to the other side, and power in relation to having a developed Best Alternative To a Negotiated Agreement (BATNA) that you can walk away from the negotiation feeling comfortable.

Relationship power : Confidence and charisma, interpersonal power (that is, an ability to influence others through interpersonal strategies and skills), the power associated with

the issue of future interaction (that is, there is power in the likelihood of future dealings), and reputation.

Structural power : This source of power is based on structural differences between negotiators such as the social, political and organisational structures within which people operate, how organizations are positioned in relation to other organizations and who controls resources. Where there are inequalities in structures, there is structural power for at least one party.

CONTEXTS FOR POWER IMBALANCES

Cross-cultural disputes : eg. even if fluent, legal jargon will make non-English speakers struggle in legal disputes in other countries

Juvenile crime : age issues, awkward teenage, no confidence etc

Workplace disputes : employee – unions etc, employer – can terminate employment

Insurance disputes / Corporate dispute (where one company has more money)

Family law disputes : one party might know how to annoy the other party, what they value, what makes them happy etc.

MEDIATOR’S ROLE WHERE POWER IMBALANCES

Is the mediator’s role still to remain neutral and objective? If they intervene into the content of the dispute to rectify power imbalances, does this mean they are no longer neutral? Arguably, yes.

Is the answer for mediators, “Well I can’t be neutral but I can be ethical”?

If the focus is on ethics, intervention is acceptable; if it’s on neutrality, it won’t be.

USING POWER – FROM POWER TO PERSUASION

Identify your negotiation objectives (the interests you want fulfilled)

Identify your own and others’ sources of power: Be aware of yours and others communications styles – understanding your

strengths and weaknesses is powerful and can allow manipulation of the negotiation in your favour

Strategise to improve your power base

Use skills and strategies to apply your power – persuasion, requires preparation

Note: Don’t just rely on one source of power!

RELEVANCE OF CULTURE

Legal system should be accessible to people irrespective of cultural background and first language (Parkinson)

Lawyers need to understand dynamics of cross-cultural communications (Hunter & Cronin)

Cultural sensitivity vs cultural relativism (excusing people because of their culture): do not want to be culturally relativistic (eg. domestic violence may be acceptable in some cultures but legally, NO!)

Improving the legal system’s approach to multiculturalism : interpreting services, education about legal norms, educate police, courts and legal profession etc.

L9: RESTORATIVE JUSTICE

POLICY OBJECTIVES OF ADR

To provide a better, more humane, more appropriate way for parties to resolve disputes.

Restorative justice has this aim

RESTORATIVE JUSTICE

Opportunity for the victim to have a voice Restorative of offenders who were silent during trial (their right, but not rehabilitative)

Mediation type activity in criminal matters between the community and the offender Can involve social worker, family of victim, victim, police officer etc

Distinct differences between this and the current legal paradigm

JUSTICE MODEL vs WELFARE MODEL

Justice Model Welfare Model

If a crime is committed, it’s a matter of choice on the individual’s part and requires punishment

Rather than punishment for crime, takes a more rehabilitative course, considers that not everyone is on the same playing field (social context is relevant)

Based on traditional liberal legal theory: Sees humans as rational, responsible

agents who have the ability to determine their social circumstances and therefore deserve punishment for flouting societal norms with criminal conduct;

Positions the State as the protector of social order but also as a potential threat to individual freedom;

Ensures the legal system provides legal protections for accused persons.

Welfare model is a reaction to JM: Grounded in communitarianism and

socialist conceptions of society; Sees individuals within their social

context; Sees the state’s actions in the criminal

justice arena as an implementation of social policy;

Sees the law’s legitimate role as being to secure the social good;

Sees the law, and courts for example, as being ‘here to help’.

RESTORATIVE JUSTICE AS A RESPONSE TO THE JM AND WM

Both models were “wanting”

Restorative justice was a response to frustration with JM & WM failure to “cure” crime

RJ wants offenders to take responsibility for their behaviours but wants to better prevent future criminal conduct, to protect victim and offender rights, to

integrate a sense of community into criminal outcomes, and to reject the criminal act rather than the individual.

VICTIM-OFFENDER MEDIATION AS A MANIFESTATION OF RJ

One approach to RJ

Usually for less serious offences (contrast DVD – perhaps too serious for it to work effectively – no solution, because couldn’t bring son back – not replaceable)

Goals: To help victims cope and move on To have a reformative, rehabilitative, deterrent impact on offenders To restore “community”

Most common models: Pre-charge model Pre-sentence model (note: also mediation as part of sentencing model):

- Requires agreement of relevant court- Consent of all parties – victim and offender- Guilty plea of offender

Benefits for offenders: Can explain their context and the reasons behind committing the crime Can apologise and make amends Can understand true human impact of their actions on individuals but also community Can make-up for what they have done

Benefits for victims: Can explain the impact of the crime on them Can be angry, sad, disappointed – articulate Can experience community support for the way they feel – ie removing the isolation Can be apologised to Get compensation or reparation

IMPORTANCE OF RJ IN YOUTH CONTEXT

Re-integrative shaming tell them what they did was wrong, shame them (Braithwaite) Requires community support structures for it to work Separating the act from the individual (like position v interest!) – understand why

they committed the act, the circumstances Criminal trial = degradation ceremony? VS reintegration of RJ? Preventing deviant / destructive personality elements in youth from becoming dominant

FACING THE DEMONS – DVD

Approaches of facilitator No attempt to excuse the crime – trying to understand it Can context of criminals be easily understood by the victim’s family – not really Does process leave offenders at the mercy of the victim’s family? Yes!

Makes power imbalances VERY evidence Should programs be limited to lesser offences? Yes, I think so

L10: FAMILY LAW AND DISPUTE RESOLUTION

CHARACTERISTICS OF FAMILY LAW DISPUTES

May be: High levels of conflict High levels of emotion Long history of lack of trust

Negative intimacy Involvement of innocent others

(children)

SPECTRUM OF FAMILY DISPUTE RESOLUTION

RE F LITIGANT IN PERSON

Highlighted the nature of adversarial process in family law – problematic when people involved don’t have the capacity to represent themselves.

Our legal system works best when both sides have competent lawyers, not when people are self-represented

WAYS TO CATEGORIES DISPUTE RESOLUTION PROCESSES

Available outside or inside court Outside court :

- Counselling- Negotiation- Mediation- Arbitration- Expert Appraisal- Legal Aid Conferences- Collaborative Law

Inside court :- Case Assessment

Conference- Conciliation Conference- Less Adversarial Trial

(LAT)- Adversarial Hearing

Facilitative, advisory and determinative processes Facilitative – less formal Advisory / Determinative – more formal

Represented and unrepresented Instances of both throughout the process

Reportable and unreportable

Degree of formality / higher cost

Degree of informality / lessor cost

Third party imposes solution

Higher levels of conflict

Parties reach solution themselves

Lower levels of conflict

Facilitative mediation LAT CourtConcilliation

Advisory mediation

Collaborative lawNegotiationCounselling

Arbitration

Level of party self-determination Negotiation between parties = high levels of self-determination

Note : lawyers have a role right across the spectrum

PRIMARY PROCESSES

Counselling : Usually at community/private facility To reconcile or adjust to separation/parent after separation

Negotiation : Interest-based: in terms of interests Adversarial: in terms of legal positions

Mediation : Facilitative Advisory

Conciliation : Similar to advisory mediation but within a court with court officer as facilitator

Court hearing : Adversarial or less adversarial Determinative process

FAMILY RELATIONSHIP CENTRES (FRC)

Aims: To move family law disputes away from the courts Ensure children grow up in safe environment with love & support of both parents First point of call for people separation

Provide information for families

Help families use other services

Provide assistance for separating families – Individual interviews to identify issues and options and focus on needs of children Group programs on parenting after separation “Mediation” joint sessions for parents to help them reach agreement

CONFIDENTIALITY

Exceptions to confidentiality/admissibility (Family Law Act 1975 (Cth), s10 D,E,H,J)

Confidentiality, s10H: Protect a child from risk of harm (physical or psychological) To prevent or lessen a serious and imminent threat made to life/health or property Report commission or likely commission of offence violence/threat or intentional

property damage or threat of damage To assist child rep to represent child properly

FACILITATIVE MEDIATION

Interest-based, problem-solving mediation

Process orientated

The parties provide: the options; and the solution to the dispute

Mediator: Purely facilitator of communication process Does not suggest options Does not give indications of appropriate

settlement options Not required to be an expert in content only an

expert in mediation

Egs. At community mediation centres such as Family Relationship Centres, Relationships Australia

ADVISORY MEDIATION

Object: to reach settlement based on legal rights within anticipated range of court outcomes

Mediator an authority figure (eg. barrister) who evaluated case based on experience of law and court outcomes

Offers recommendations of how case would be decided if proceeds to court

Note : criticized for compromising mediator’s neutrality, once engaged in content, can no longer be neutral

FAMILY LAW DR REQUIREMENTS

Property and financial disputes (Family Law Rules): Pre-action procedures (Sch 1, Part 1, 3: Family Law Rules):

Make a genuine effort to resolve dispute by participating in dispute resolution Duty of disclosure: parties have a duty to make timely, full and frank disclosure

Parenting disputes (s 60I FLA) Parties must attempt family dispute resolution (eg. parenting mediation) prior to filing

Must obtain certificate from mediator setting out whether parties made a genuine effort

Accredited and registered family DR practitioner can issue certificate

Exceptions to requiring mediation first : where needed urgently, eg. domestic violence; a history of violence; safety issues; inequality of bargaining power; risk a child may suffer abuse; emotional, psychological and physical health of parties

Violence and family mediation:

Situation couple violence : violence arises in particular situation Coercive controlling violence : domination and control of victim Separation-instigated violence : only occurs round time of separation Violent Resistance : self-defence

What constitutes “genuine effort” ( Astor, 2008 ) : Attending family dispute resolution , and Willingness to consider options put forward by the other party or the family dispute

resolution practitioner, and Willingness to consider putting forward options for the resolution of the dispute, and Willingness to focus on the needs and interests of the children, to the best of the

parties’ ability (Astor, 2008).

Child inclusive mediation: Perhaps not a good idea if domestic violence Could bring an object of child’s into room to get parent’s to focus on looking at what is

best for the child

LESS ADVERSARIAL TRIAL (LAT)

The judge controls the hearing process and its inquiry, not the lawyers A family consultant is in court from first day as an expert adviser to judge and parties The parties can speak directly to the judge to tell in their own words what the case is

about and what they want for their children Hearsay evidence can be admitted The trial starts when the parties first meet the judge It may finish on the first day or further meetings to continue the trial may be scheduled

between the judge and all other parties The same judge and same family consultant deals with the matter throughout the trial Most of the evidence will come from each of the parents. Judge concentrates on getting the best information from everyone about the specific

needs of the child(ren) The judge will consider the evidence and may discuss it with the parents or witnesses Meetings with the judge may be by telephone conferences

LEGAL AID CONFERENCES

Family dispute resolution conference, part of process of applying for legal aid Chaired by lawyer or social worker or both Mediation/conciliation/early neutral evaluation (Altobelli) Chairperson makes recommendation at end as to further legal aid

ARBITRATION

Both parties must consent (s 13E FLA); award must be registered to be binding (s 13H) Advantages : Cost, time (long waiting lists in court), private, choice of arbitrator, binding Setting aside award : award can be reviewed / set aside (s 13J/K); set aside if fraud,

non-disclosure, impracticable, arbitrator bias or lack of procedural fairness.

L11: DIAGNOSING DISPUTES

SELECTING A PROCESS

The lawyer’s role is to understand the DR spectrum and to make appropriate choices for their clients across that spectrum that are appropriate to the dispute type, nature of the clients etc.

General factors (integrated with Astor & Chinkin factors):An analysis of a dispute generally involves looking at the following general factors:

Defining the problem: What is the subject matter of the dispute? / Nature of the dispute (A&C)

What is the factual and legal complexity of the dispute? (Astor & Chinkin)

What is the monetary value (if any) of the subject of the dispute? (A&C)

What are the key issues between the parties?

Who are the participants: Who are the parties to the dispute? – Any power imbalances? Are there any third parties who are not directly involved but may have an interest

in or impact on the outcome? What are the communication skills of the parties? What are their individual needs and interests?

- Positions are relevant to known, but need to know interests, can identify by asking “why?”

The relevant context and past: What is the factual context—that is, the history of the dispute, the current

circumstances?

How many parties are there (Astor & Chinkin)

What is the context in terms of the parties and their connection with each other?- What is their relationship? Are there power imbalances? (Astor & Chinkin)

- Do the parties have a continuing relationship? (Astor & Chinkin)

Possible options for resolution: What are the objectives of the parties? (Astor & Chinkin) What sorts of options are the parties looking at achieving? Do they want a range of remedies and options to be open to them? Is there a need for privacy? (Astor & Chinkin) What resources are available for the resolution of the dispute? (Astor & Chinkin) What time factors apply to the dispute—is there a need for a speedy

determination or is there some flexibility about time frames? (Astor & Chinkin) Do they want an enforceable decision? – Will need a more formal process

- Need for authoritative ruling with precedential effect? (Astor & Chinkin) Would they be able to adhere to a negotiated outcome? What is the ability of the parties to negotiate without third party assistance? (A&C)

A MATRIX FOR ASSESSING THE SUITABILITY OF PROCESSES FOR DISPUTES

(Facilitative) Mediation

Note: consider these factors re: negotiation as well, just won’t have facilitator

When parties: Want to have some type of continuing relationship Want control over dispute resolution process and agreement at end Are concerned to minimise costs and delay Want the dispute resolved confidentially Need a tailor-made resolution which addresses many issues and needs, for

example, contact arrangements for children Have a genuine desire to resolve the dispute without commencing or continuing

litigation.

Conciliation Such a level of conflict that parties require more directive facilitator Where one party is being unrealistic about the outcome they will achieve if the

case proceeds to a final court hearing Concern about costs & delay to proceed to final court hearing (want to save

money and time) Want dispute resolved within court/tribunal or commission process Need a tailor-made resolution which addresses many issues One or both parties may have a genuine desire to resolve the dispute without

proceeding to final hearing however conflict too high to achieve this by mediation. Usually court ordered

Expert appraisal / determination (non-binding)

Dispute involves issues of fact, quantification or valuation rather than legal liability

when parties have a good relationship which they wish to preserve Expert’s opinion is likely to assist the parties to reach a settlement.

Expert determination (binding)Note: needing binding agreement

Dispute involves issues of fact, quantification or valuation rather than legal liability

Parties want binding decision but wish to avoid disadvantages of arbitration and litigation

The parties’ relationship is such that formal enforcement through the courts will likely not be necessary.

ArbitrationNote: wanting to avoid court but still need formal decision making

When parties: Wish to reduce delays & formalities associated with court procedures Require some degree of privacy (eg. Taxation issues) May require adjudicator to have technical expertise Wish to limit the hearing to two parties; and/or Are located in different countries.

LitigationNote:Urgent disputesIssues can only be resolved by court – need for particular finding of fact

Circumstances of urgency, party may lose entitlement if matter not taken to court Case inappropriate for dispute resolution, eg, concerns allegations of fraud or an

illegal act, or issue that can only be resolved by court decision One or both parties does not genuinely want to resolve the dispute Parties want a public forum Parties’ legal representatives are not skilled at non-adversarial justice they make

seek litigation as feel comfortable with the process owe duty to be skilled! There is an overwhelming power imbalance which is such that a dispute

resolution process cannot be successfully utilised May be used inappropriately where one party can afford the litigation process

and is using it as “payback” to punish the other party in the dispute

WHEN IS MEDIATION NOT APPROPRIATE

When parties don’t have the capacity to negotiate on their own behalf effectively Where power balance is severe (and no protection from lawyer etc) Where self-determination is not achievable (that is the key element of mediation) Where informed consent isn’t possible (ie. no access to legal advice / feel pressured to make a

decision) Informed consent needs to be real for self-determination to be achieved

Note: if choosing mediation – see Rundle article for roles lawyers can take on in mediation

Lawyer’s adversarial vs non-adversarial role: Non-adversarial :

Importance of getting to interests of parties, beyond positions About pursuing client’s interest, ensuring that they are effectively represented to achieve

the outcome THEY want Important to have knowledge and skills of when distributive or adversarial approaches in

mediation / negotiation may be required

Adversarial : About being persuasive, about evidence

DRAFTING DR CLAUSES

Must not oust jurisdiction of court (Scott v Avery) Must be certain (Elizabeth Bay) Must not refer to “good faith” participation – best not to include good faith requirement (David

Spencer Article)

MOST COMMON MISTAKES BY LAWYER REPRESENTATIVES

Wade: Failure to prepare the ‘right’ information Overconfident prediction of court outcomes Overemphasis on ‘legal’ issues as compared to ‘commercial’ or personal issues Emotional and antagonistic involvement of lawyers ‘Entrapment’ - investing too much time and money into the conflict

THE 5 HUMBLE HYPOTHESIS

Good for a lawyer to have in mind when going into DR process:

What goals does each client have? This is the reverse of ‘what risks does each client have if the conflict continues’?

What are the causes of this conflict? What interventions might be helpful? What bumps/glitches are predictable? What substantive outcomes are possible / probable?

7 PRINCIPLES FOR ADVISING

Vickery: 7 principles for successfully advising a party at mediation:

Be familiar with the process Be prepared Be flexible Be client responsive Be frank (but diplomatic) Be patient Be alert

L12: ETHICS

KEY ISSUES IN NON-ADVERSARIAL PRACTICE

Confidentiality and privilege: Generally claimed that DR processes are confidential

Confidentiality is complex and cannot be absolute (Astor & Chinkin)

Statutory assurances of confidentiality are one of the strongest forms of protection (eg. S 131 QEA: docs prepared in attempt to negotiate are confidential)

Contractual assurances of confidentiality (eg. In agreements to mediate) have yet to be fully considered by Aus courts

Common law privilege : BUT courts fact difficult balancing act – the assurance of confidentiality vs ensuring that courts have the best evidence before them

Liability and immunity: Mediator liability has been considered in relation to:

- Torts : difficult to establish standard of care; difficult to establish causative link between damage suffered and breach (especially in facilitative mediation)

Enforceability of settlement contracts / DR clauses

ADR MOVEMENT – UNREGULATED

Can lead to uncertainty for clients about what to do if practitiooner is not competent / breaches an ethical or legal duty

Ethics are currently dealt with by standards and codes of conduct (eg. Law Council of Australia)

Now statutory-regulated mediators vs voluntary individual ones (something to advise client of re: mediation)

l1: spectrum of dispute resolution options web viewtactical manoeuvring. ... family court and...

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