ADR Overview - Alternative to Litigation PDF

# ADR overview - alternative to what? ## ADR - Alternative to? - Litigation - Imposition of an answer by the judiciary - Power imbalance (shifting the dynamic) - Conceding defeat - Powerlessness and being stuck in an unfavourable position - Expensive legal battle ## Dispute #...

# ADR overview - alternative to what? ## ADR - Alternative to? - Litigation - Imposition of an answer by the judiciary - Power imbalance (shifting the dynamic) - Conceding defeat - Powerlessness and being stuck in an unfavourable position - Expensive legal battle ## Dispute ### Types of Disputese - Conflicts - affects ideals, beliefs, sense of self - Disagreements: lawyers generally not needed, informal agreements/compromises reached - Combat ### Nature of a Dispute - Heightened feelings of stress and concern - Looking for an answer and certainty, may require advice - Evolves past the point a trivial dispute once seeking advice - Lawyer's role is to provide a pathway to a solution - Adversarial system is based on brinkmanship (holding onto position) - Can be about entrenched personal issues (e.g. custody of children), rather than just money ## Resolution ### Possible Forms - Judgment - Deed, Contract ### Nature of Resolution - Closure of dispute - Possibly not the end of the parties’ relationships - Resolving a dispute is highly linked to resolving the underlying issues - Only 5% of matters go to trial - However, lawyers cannot address every underlying issue - Majority of disputes do not need lawyers - Access to justice implications – very difficult to get justice if litigation is all that is available ### What is Closure? - Unlikely that the client knows at the outset of seeking advice - Closure is something they can live with, not necessarily what they happy with - Not temporary resolutions - Must be lasting closure - Need to be adaptive, take different positions over the course of resolving ### How can closure be secured? - Trials can secure but have many downsides: - Inaccessible to many - Expensive - Lots at stake - Judges often are making the 'least bad' decision ### Is the cost of being right worth it? - Best outcome for the client is more important than being right - The most strictly correct legal outcome is not always best - Need to focus on client's need ## Civil Disputes ### Professor Genn - - Comprise a rag-bag of matters and participants - At the heart each dispute is a party trying to improve their circumstances - Conflict triggers change - Examples include: - Contracts: individuals, businesses, businessmen - Compensation for injury - Lenders evicting mortgage defaulters - Challenging decisions of central/local government bureaucrats (housing, immigration, mental health, etc.) - Family disputes # Dispute Resolution in a Litigation Framework ## 2014 Productivity Commission Report - Being in a dispute has a substantial impact on individuals’ lives (esp. family, employment, government) - Everything takes a long time once entering into the legal system because of the high volume of disputes - Through positional entrenchment, risk increases ## Key skills of a modern lawyer - Understand the client, including asking questions to understand more fully - Having tact (e.g. when to press issue, ease off) - Shift focus from the lawyer - Find a way through the problem - Job is to make yourself redundant through finding a solution ## Legal Client's Priorities - More than just understanding the law - Limits to what a lawyer can deliver can provide closure, but outcomes depend on the dispute ## Justice - Justice is extremely subjective (a perception) - The ability for a system to deliver what is felt as 'justice' by all parties is extremely difficult - Parties seeking justice are seeking something cannot ever be able to be delivered by the court system/counterparties - Closure is different – allows people to move on with life, maximise outcomes, accept imperfect outcomes ## Position - Legal concept client thinks they are entitled to - Usually polarised from counterparty - Usually no give - Generally have a right or wrong answer, hence why disputes become entrenched ## Interest - Harder to articulate than positions - Motivating factors - More difficult to have interest met than it is to hold position - Hold more options for solutions ## Factors That Influence Dispute Resolution - Parties to the dispute - Only individuals that can end the dispute - Lawyer needs to understand them, help to make commercial decisions - Government - E.g. floodgate arguments: the risk is not contained to a particular dispute, but extends more broadly - Insurers - Family/friends - Employer ## Feeling of Being in Conflict - Heightened emotions that are not productive for reaching an outcome - Resolution by design is very different to resolution by default - Epistemic trust = a system of conveying trust, authority - Client's perception can be shifted once the trust connection has been created - Need to hear client so client feels understood ## Importance of DR Skills - Need to ascertain which mechanism is going to be the most effective for a specific dispute - The parties best placed to make difficult decisions are the parties to the dispute - Challenges: - Cultural barriers - Language barriers - Rules what mechanisms can be used - E.g. doping can only be resolved through arbitration (National Sports Tribunal) - Transactional, commercial aspect - Need to think ahead ## Loss Prevention - Many contracts have DR clauses written into them ## Pre-emptive Inclusion in Business Contracts - Most jurisdictions require engagement in DR processes before going to trial ## Mandatory Pre-litigation/Pre-trial Process - Forces parties to think about what they are able to receive - Awareness that handing decision over to judge creates risk for what the outcome will be ## Post filing - Mandatory and Optional - Inaccessibility of litigation - Best outcomes through non-litigious processes ## Access to Justice # DR as a Process - Not a single event, but a process - Involves a constant, active exercise which is the fundamental purpose of a lawyer ## Palmer and Roberts - Individual perceives themselves as suffering from some injurious experiences - Locate the origination as a legal wrong, set in train a process to put the matter to rights - All disputes have a history - Lawyer reshapes the history of the dispute into a form suitable for processing in the legal system # Actors in a Dispute ## Lawyers - First Responders - Come into the parties' lives quite early in a conflict - Trained to view the issue in an adversarial manner - What would a judge decide? - The 'just in case' case, if it ends up before a judge - Ensure that client doesn't prejudice interests ## Oppositional Bargaining - Include points they would never convince the judge of - Makes it appear that brining compromise the table - Only talking to the client about problems will not help them to see the solution - Makes lawyering more difficult ## Judge Lens - Very narrow funnel - Only take what is relevant, leaving behind lots of aspects of the conflict, values and beliefs - Must have the currency of the court (evidence) - If the funnel is left wide open, then cannot come to a decision - Aim is to get the essential end result (determination) - Judge lens -> court lens –> practitioner lens # Conflict V Combat - Language used to describe the world inhibits our perception - Labelling something changes the way it is perceived ## Conflict - One dimensional - Binary - Physical - Still informs our world view - Expectations - Physiological response - Language – informs perceptions ## Combat - Embedded response to conflict ## Other reasons for progressing to litigation - Need court to take interlocutory steps to unlock the dispute - E.g. disclosure issues, need access to a report # Jurisprudential Theories of Dispute Resolution - Therapeutic Jurisprudence ## Therapeutic Jurisprudence ### Applicability/Development: - Developed in the context of criminal law, but applicable to all jurisdictions involving interpersonal, non-commercial conflict - Especially applicable: - Family law - Wills and estates (fundamental personal rejection no legal outcome remedy) - Collaborative practice born in family law - Expanding into wills and estates - Contested estates -testator no longer there, unable to explain their rationale ### Key Ideas: - Explores healing power of law and its intersection with other disciplines - E.g. psychology - Means of examining the law and its role in society as something 'social' rather than something purely legal - Law not therapy, but lens recognises fact that law has wider capabilities - Legal outcome not always a just outcome - Recognises there is room for more than a legal outcome - A purely legal outcome may not be conducive to determinations of matters involving interpersonal conflict - I.e., winner and a loser - Impact reflected discretionary nature of decisions (which can make doctrine of precedent difficult in already complex area "each case turns on its facts'") ### Key Features: - Non-adversarial - Requires real skill articulate a case on behalf of client without becoming adversarial - Interests based and creative - E.g. family law environment – sell assets in one party's hands may mean less tax liability, even if the proceeds ultimately goes to the other party – creative outcome that requires incredible trust, impossible in adversarial system - Both parties represented - Talking about the 'other' things before leading into the actual legal problems - Neutrals - Technical experts - E.g. superannuation expert, superannuation law expert - Not 'hot tubbing' experts – look for a single expert to guide through the process - Communication experts - Expert able to tailor their advice to the level of understanding of the parties - In family law environment – typically one party is more business savvy, informed - Ouster clause - In all collaborative agreements - If don't come to a binding agreement – lawyers acting for parties in the process are out, and cannot take the parties through the litigation process - Money and resources expended is wasted if don't get to closure - Stops a lot of lawyers from wanting to engage in collaborative practice ### Why is it important to understand? - Human at the centre of the dispute - Recognition that best outcome is not always legalistic outcome – creativity ### History: - Born in 1990 – Stu Webb declared he would never go to court again for family law clients - Process requires parties to do things quite differently - Found its home in US - Americans very familiar with therapy – idea of talking about things - Invite people to sit at collective table and find collective solutions collective problems - Recognition that there are many moving parts, problems are multi-faceted - Not looking to place the blame with a singular person - Challenging transplant into Australia (frowned upon to discuss drivers, feelings, etc.) - Find way forward that is least damaging and most productive ## Features - IACP, AACP, QACP - Associations of collaborative practice in all major capital cities - Remove 'lawyer' from name to reflect fact that collaborative professionals captures more individuals # Economic Agency ## Applicability/Development - Significant portion legal disputes involve money (tangible amidst the intangible) ## Key Ideas - Recognises each of the parties in a dispute have incentives to behave in the way they do - Incentives inextricably linked the economics of the outcome of the proceedings (and the economics of the proceedings themselves) - Recognises rational and often irrational behaviour coexists with arguments around who will accept what to end a dispute - Suggests there a strong incentive to be better off - Where there is a separation from control the outcome, perverse incentives arise - Recognises unequal bargaining power in most disputes - Encourages careful consideration of economic outcome (and encourages avoiding bringing unrealistic expectations the court), but even careful consideration cannot change the range of possible outcomes and the costs associated with pursuing them - The persons to determine a matter are those involved it (the parties) rather than external parties (the court) - Compromise not necessarily based on personal wound or healing - Can be more transactional - Costs of pursuing a just/fair outcome being disproportionate to the costs involved ## Why is it important to understand? # ADR in Australia ## Context of ADR - Preventative - Transactional - Dispute-focused - Bespoke - Essential to functions of judicial system and courts ## Rise of ADR in Australia - Originally focused around family law - Key focus of courts reform/case management agendas in CL jurisdictions since 1990s ## 1997: Woolf Report - Lord Woolf (English jurist) conducted review of civil justice system in England/Wales - Woolf Report (April 1997)= catalyst for development of ADR in England and reform of civil courts many CL jurisdictions - Including Queensland ### Woolf Report: - Defects in present system: - Too expensive (costs often exceed value of claim) - Too slow bringing cases to conclusion - Too unequal - Lack of equality between powerful, wealthy litigant and under resourced litigant - Too uncertain (difficulty of forecasting cost/duration induces fear) - Too adversarial (hold onto position rather than searching for solutions) - Incomprehensible to many litigants - Too fragmented in the way it is organised (no with clear overall responsibility for administration of civil justice) - Insufficient attention paid to paramount important avoiding litigation where possible - Courts should make use of powers to ensure that parties try to resolve dispute with minimum involvement of courts - Role of courts drive and self-identify a last resort venue ## 2011: Commencement of CDR Act (Cth) - Commenced 1 August 2011 - Encourages parties to take genuine steps (defined in the Act) to resolve dispute before commencing certain legal proceedings in FCA and FCFC ### Objectives: - Ensure that, far as possible, people take genuine steps to resolve disputes before certain civil proceedings are instituted - Promote a move away from adversarial approach to litigation - Improve access to justice by encouraging early dispute resolution ### Effect - Strong costs consequences for non-compliance - Weighing factor for court when making orders - In practice, come to resolution on some issues through DR processes but once proceedings instituted - end up bringing those aspects back into issue ### Application - Applies to all general federal law matters in FCA and FCFC, unless proceeding is excluded - Excludes: - Civil penalty/criminal offence proceedings - Appeals - Ex parte proceedings - Proceedings involving vexatious litigant - Proceedings under: - Family Law Act - Migration Act - Native Title Act - Fair Work Act ## 1995: NADRAC Formed - Cth Attorney-General’s Department = peak lawyer - NADRAC formed to give ADR-related policy advice to A-G - Dissolved in 2013 ## 2012: NADRAC – National Principles for Resolving Disputes - Focus on using ADR instead of going to court, even if proceedings have been commenced - Provide information about how ADR aims to work so parties know what to expect if they choose ADR - Identifies 7 national ADR Principles ### NADRAC National Principles: 1. Self-responsibility (the first step) 2. Early resolution is good resolution - May not always be the case, e.g. significant power imbalance (could be unjust if resolved too early) 3. Listen and participate 4. Be informed when choosing an ADR process - Lawyers typically thinking about the 'just in case' to trial, not to ADR - Lawyers have to change litigation perspectives, and think about ADR from outset 5. Use ADR, then the courts 6. Ask questions about ADR 7. Share knowledge about ADR accurately ## 2014: Productivity Commission Report - Conducted by Warren Mundy ### Scope: - Examine costs accessing justice services and securing legal representation - Impact of costs on access to and quality of justice ### Considerations: - Alternative mechanisms to improve equity/access to justice achieve lower cost civil DR - Early intervention measures - Models of ADR - Litigation funding - Different models legal aid assistance, e.g. community conferencing - Use of technology - Expedited procedures - Reforms have been effective for lowering costs/securing legal representation/promoting equality in justice system ### Key Issues: - Civil justice system is: - Slow - Expensive - Adversarial - Notion of civil justice system misleading (not single way diagnose/remedy) - Litigant behaviour: - Many parties resolve disputes in shadows of the court - Many deterred from using low cost/informal DR mechanisms fears regarding costs and uncertainty about where to obtain assistance - Lawyers gateway into the law - Interests of lawyers and clients do not always align - Lawyers not trying to prolong closure, but not necessarily drive to resolution - Will take massive cultural shift to think like resolutionist, rather than a gladiator - Sophisticated skills needed rather than just knowledge - Courts do more avoid unnecessary expense - Clients need to be informed resolution options open to them and the associated costs - Some disputes need to go to court - More needs be done to stop delays - Adversarial behaviour of parties/lawyers hinders resolution (exacerbates) - Court needs should be more systematic - Disadvantaged Australians are more susceptible to, and less equipped to deal with legal disputes - Need more resources - More socioeconomic disadvantage = more likely to be facing number of legal disputes - Complexity sits in a portion of the population who is least able to navigate it - Funding for legal assistance providers should be redirected ## Expectations of Lawyers - Key role is to be resolutionist, act with lens of resolution – message cross jurisdictions - Trial matters are very conspicuous - Complex issues - Combative clients - Most matters are capable of resolution # Jurisdictional Rules: - Act: Gives court power to make enforceable orders (jurisdictional components) - Regulations: Usually made adopt provisions that are linked to some other piece of legislation - Rules: Adopted by all courts and tribunals, set out how to conduct proceedings in court/tribunal - Binding to extent that a judicial officer does not set them aside - Some flexibility ## Solicitors Conduct Rules - Paramount duty is to the court and administration of justice - Client’s/employer’s interests = secondary - Everything that is done must be through the lens of facilitating justice - Never put yourself in a situation where you act unethically for the client - Duty to only bring matters to trial for which all options have been exhausted - Give client enough information to make decisions in their best interests (i.e. which lead to resolution) - Constantly advising (process of resolution) ## Fundamental Duties of Solicitors: - Paramount duty to the court and administration of justice - Duty is paramount and prevails to the extent of inconsistency with any other duty - Includes an obligation to identify and settle cases that do not require judicial determination (s 7.2) - Must provide clear and timely advice to assist a client understand relevant legal issues + make informed choices about action to be taken. - Must inform client/instructing solicitor about alternatives to fully contested adjudication which are reasonably available - Unless solicitor has reasonable grounds believe that client already has such an understanding to permit them make decisions about their best interests ## Other Fundamental Ethical Duties: - Act in the best interests of a client in any matter which the solicitor represents the client. - Be honest and courteous in all dealings in the course of legal practice - Deliver legal services competently, diligently and as promptly as reasonably possible - Avoid any compromise their integrity and professional independence ## UCPR 1999 (Qld): - Overarching provisions that govern conduct of all civil proceedings in state courts - Applies irrespective of the relevant act. - Focussed on making sure that matters which go trial are those that really need determination. ## Purpose: - Facilitate just and expeditious resolution of the real issues - Focus on resolution rather than determination ## Mechanisms: - Refer for mediation (more facilitative) - Refer for case appraisal (more determinative) ## Regulations: - Reg 5 - Philosophy overriding obligations of parties and court - The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense - Pt 4 - Alternative dispute resolution processes - Focus on Mediation and Case Appraisal; referring and 'reporting' mechanisms - Reg 321 - Proceedings referred to ADR process are stayed - Subject to an order of the court, if a dispute in a proceeding is referred to an ADR process, the dispute/all claims in the dispute are stayed until 6 business days after report of ADR convenor certifying the finish of the ADR process is filed ## Federal Court Rules - FCA has more established DR processes - Can conduct through judicial registrars (with delegated judicial powers) - Part 28 - Alternative Dispute Resolution - - R 28.01-General: Parties must, and the Court will, consider options for alternative dispute resolution, including mediation, as early as is reasonably practicable. If appropriate, the Court will help implement those options. - R 28.03 - Arbitration, mediation and ADR process: - If Court orders the a proceeding/part of a proceeding/matter arising in a proceeding be referred to an arbitrator/mediator/suitable person, the ADR process must be carried out in accordance with this Part - Court may make further orders, e.g. order for the time within which the mediation must start and finish ## FCFCOA - Practice Direction: - Central Practice Direction: General Federal Law - 6.1 – parties excepted to make genuine attempt to resolve their dispute - Encouraged to use all appropriate DR processes - E.g. court-appointed registrars to resolve/narrow issues in dispute - 6.2 - options for dispute resolution, either by agreement or by court order, including conciliation, mediation and arbitration - 6.3 - Court expects parties to meaningfully participate in DR and make genuine effort to resolve issues in dispute - Including by exchanging relevant information in advance - 6.4 – s 161 Act, Part 23 of Rules: Court may refer proceeding for DR with judge, registrar, or other appointed person - Conducted by registrar - 6.5 – Court may refer proceeding for mediation - Alternatively, parties may use private mediator - Mediation may occur at any stage of the proceeding - 6.6 - Court may order arbitration and, with parties' consent, nominate an arbitrator - 6.7 - parties expected to consider reasonable offers of settlement at any stage of proceeding - Failure to do so may have cost consequences ## Family Division: - Overarching purpose embedded in FCFCOA Act = facilitate just resolution of disputes: - According to law; and - As quickly, inexpensively and efficiently as possible - Genuine steps certificate issued to certify that parties come to court having tried to resolve things - Case management pathway: ## Central Practice Direction: Family Law Case Management: - 6.23 – unless exceptional circumstances exist, parties required to participate in DR within 5 months from commencing proceedings - 6.24 - proceedings involving family violence and safety concerns: - Consideration given whether DR is appropriate - Can measures be implemented to facilitate DR occurring as safely as possible - E.g. conducted electronically, in separate rooms - 6.25 – if the Court is satisfied, having regards to the means and resources of the parties, that it is appropriate for them to participate in a privately funded DR event, they will be referred to: - Private mediation; and/or - Private, legal aid facilitated or community-based FDR; and/or - Arbitration with the consent of the parties. - [trying to save the public purse – if parties can afford it, then they may need to privately fund DR; for arbitration, need to buy into process] - 6.30 - Court expect parties to place themselves and each other party in most informed position possible for any DR event - Including by providing sufficient disclosure, obtaining any required valuation - Enable events to be productive, maximise resolution prospects - 6.31 – if DR event does not proceed due to party’s non-attendance/non-compliance with orders, directions, or the Family Law Rules, cost consequences may follow - [including personal costs orders which deter lawyers from litigating unnecessarily] # FLA and FDR: - Engaging with Family Court/commencing proceedings prohibited until FDR completed (s 601) - Require s 601 certificate: FDRP confirms parties’ attendance, reasonable effort, suitability for FDR, etc. - Mandated process forces lawyers to consider difficult issues that be tackled effectively through DR - FLA introduced concept of FDRPs - Work with parties before they contemplate entering the system # FDR Regulations Apply: - Family Relationship Centres: - Around the country - Provide FDRPs at low rate - Effective managing disputes with low-risk profile - Private FDRPs available # Traditional Dispute Resolution Practices - External influences affecting the law ## Development: - Initial focus the lawyer – funnelling parties’ experience through the prism of things they knew - Solutions they could obtain at law - Historically paper-based - Attention the person had all the information ## Lawyers and ‘information’ - Currency of lawyers - Know who to go to for knowledge, limits of knowledge, etc. ## How lawyers do their jobs - Need to look for the risks in the case - Run the danger of becoming myopic – lose sight of the real issues ## Options - Extent which legal knowledge needed for alternative options depends the nature of the dispute, parties, etc. - Appetite to stay in conflict likely going to change over time ## Yesterday - Primarily court - Also negotiation ## Today - Court (5%) - Very small percentage - Mediation - Self-service/AI - Likely to grow and influence other methods - Arbitration - Negotiation - Collaboration # Overview of Dispute Resolutions Processes – Mediation, Arbitration, Conciliation, Negotiation ## Negotiation: ### Overview: - Very informal - Can be documented in any form - Lawyers may be involved - Entirely non-binding (could commit in principle and then break) ### Applicability: - Entirely based on cooperation and commitment from the parties - E.g. no gatekeeper checking that information hasn’t been withheld ### Advantages - Cheap - In some circumstances, the vast majority of disputes are resolved through negotiation ## Mediation ### Overview: - First process with some established formality - Effectively rules accompanying the process (but not the content, experience, outcome) - Involves 3rd party (mediator) that facilitates the agreement - Very much focussed on interests, rather than positions - No binding agreement in-and-of itself - Entirely confidential ### Applicability: - Most common process in practice ### Disadvantages: - Possible to enter into bad bargain (confidential) ## Conciliation ### Overview: - Middle ground - Expert expresses themselves more robustly - Talk about content in a way that might make party change their views - Party has control the choice of process (less capacity to influence outcome as in mediation) - Conciliator cannot make a binding decision - Consensual ## Case Appraisal ### Overview - Middle ground - Appraiser cannot make a binding decision - Consensual outcome ## Arbitration ### Overview - First process where parties lose capacity to determine outcomes themselves - Choose process through consent - Decision-making capacity given to expert - Much more formal, driven by evidence - In other processes, evidence matters a bit less ## Litigation ### Overview: - No privacy (moves to public domain) - No control - Undoing litigated outcome is difficult and costly - Have to appeal by finding error of fact/law - Highly legalistic - Clear outcome with orders - Binding and enforceable orders - Orders must be able to be read in isolation # Dispute Resolution – Differing Jurisdictions, Differing Practices – Commercial, Family Relations (Family Law/Wills & Estates), International, Employment, Sport, Franchising, Construction # Restorative Justice Concepts ## Restorative Justice Conferencing - Firmly grounded in therapeutic jurisprudence – internationally recognised - Carefully convened, confidential, voluntary “mediation” provided by State Justice Departments - Effectively a mediation - Very carefully convened - Discuss experience directly with the perpetrator ### Participants: - Victims of crime (“person harmed”) - Perpetrator ("the person responsible for the harm") - The “convenor”, accredited mediator appointed under the Dispute Resolution Centres Act 1990 - Preparation of convenor is key - Aware of the role everyone is playing - Group session, shuttle, etc. - Confidential process, other than a restorative justice plan which might be provided to the agency that has referred the parties (e.g. bail agency) - The parties’ support people - No limit who can come - Victim’s families or legal representatives, community support personnel, counsellors, elders ### Suitability: - Most frequently used where offences involve stealing, assault, fraud, wilful damage or unlawful use of a motor vehicle (Magistrate’s Court) ### Purpose: - Designed to enable discussions of the victim’s experience and the perpetrator’s responsibility - Empowers parties to be part of the resolution process (offence has already been dealt with) - Opportunity for restitution, apologise directly - Every party move towards resolution for themselves - Especially useful youth conferencing ### Procedure: - Those affected by crime can: - Tell their story (cf. prove the offence) - Talk about how the behaviour has affected them - Ask questions of the person responsible and/or their family - Mitigate fears of future harm - Secure an apology/recognition/insight from the person responsible - Make an agreement about how to repair that harm - Move towards closure - Face to face or shuttle - direct discussions or via convenor - Preparation is key for the convenor: - Meets with all parties separately (also discusses support people and attendance options) - Satisfies themselves no harm will be caused - Prepares the parties for the conference – and potential outcomes being sought (apology/payment for “damages”/out of pocket expenses, counselling attendance, promises/informal undertakings ) ### Outcome: - May result in written agreement – a non-binding Restorative Justice Plan (be provided to referring agency with consent) ### Benefits for Victims: - Sense of justice and safety - Increased ability to move forward with life - Usually youth offending has very significant effect on family - Active role in outcome/process - Most would recommend to other victims ### Benefits for parties responsible: - Take responsibility - Reconsider direction life is taking - Gain insight into impact of behaviour - Feel the damage you caused by hearing from the person you have harmed - Provide restitution for victims - Reparation disappointment from family and relationship/situational improvement ## Youth Justice Conferencing - May not involve victim at all – e.g. family, elders - If child admits to offence/act of violence or attempt to commit (resulting in the death of or injury to a person), police can refer as alternative to court - B&E, fraud and extortion are excluded - Victim need not agree to attend - If child does not attend/comply with agreement, police action/court proceedings may follow - Any agreements reduced to writing – if a graffiti offence, agreement must include unpaid clean up work – failure to comply with agreement is referred to police # Conciliation: ## Definition: - Hybrid dispute resolution process that focuses the interests/rights of parties to arrive at a consensual outcome accords with the goals of overarching system - System objectives = compliance, regulation, safeguarding, public interest, efficient resource management ## Examples: - Tribunals: - AAT - VCAT - QCAT - Information and Privacy Commissions - Industrial Relations Commissions - Human Rights Commissions - Industry ombudsmen (e.g. financial, energy, water, telecoms, transport) - Building commissions (e.g. QBCC) - Faith-based dispute resolution services: - Religious texts (operate as objective standards for the community) - Representing set of rules and codes - Land Court/Planning and Environment Court - Rental and Tenancy Authorities - Child Protection Tribunals - Workplace Injury/Insurance commissions and authorities - Professional conduct oversight bodies - Local government complaints ## Fair Work Commission - Start with conciliation (evaluative), move to QCAT (determinative) if unable to be resolved ## Modes: - Unfair dismissal: probably going to be more information intensive, looking for $ number (rights based - talking about numbers, law) ## History of conciliation - Referred to in the Constitution - Undefined, and undefined in legislation since - Used in the context of preventing and settling industrial disputes - Came to be first introduced for the purpose of workplace law disputes ## Present Day - Used widely in legislation - Practiced by hundreds of organisations - No uniform definition, training or standard - Standardisation catching up despite wide practice - Labelled differently by many organisations ## Conciliation Report (2021) - Conducted by ADRAC - Attempting to come up with a definition for conciliation, providing a snapshot of how it is practiced in Australia - >23,000 conciliations occurring in Australia each year - Majority end in agreement - Found that no standard existed, but practiced extremely frequently ## Conflict Resolution Theory - Independent 3rd party intervention modes in conflict – ### Facilitative: - Mediators - Assist with communication: ensure everybody has an equal opportunity to speak/be heard - Doesn’t impose solutions - Job is to improve the way that communication occurs - Parties ultimately decide how/if the conflict should be resolved ### Informative: - E.g. ombudsmen bodies – resolve conflict by providing further information - Not facilitating conversation/seeking an outcome - Providing information so parties can make decisions ### Evaluative: - Most common mode for conciliators, regulatory bodies tend to use - Low-cost mechanisms for resolving disputes (e.g. resolve $500 disputed power bill) - Evaluative dispute resolver: - Listen to dispute, provide information on entitlements/rights - Conciliation conference - Facilitate conversation between parties - Ask parties to think about options to resolve - May have private discussions to attempt to get to a resolution - Ultimately on the parties to decide, but conciliator will provide a view (legal knowledge and skills) - May or may not have legal representation (very often not in the room during a conciliation) - Often have legal advice shared with beforehand - Easy access legal resources available - In some instances, need seek leave to have legal representation – e.g. very wealthy landlord v tenant (restrict legal representation to ensure fairness) ### Determinative: - Familiar with this aspect - Judge decide who wins and loses ## Features: - To judge whether conciliation: (Is the person in the middle influencing the process, but the outcome is ultimately agreed by the parties?) ### Facilitative (mediation): - Options and outcomes decided by the parties - Outcomes may not comply with legislative obligations - 3rd party facilitates discussion but does not provide advice - Allows rebuilding of trust/respect - May lead to inconsistent outcomes: ### Determinative/Investigative: - Outcomes based on a set of rules, policies and procedures - May not fit a particular context - May not address interests/needs of parties - 3rd party assesses submissions and evidence - Does not build trust/future cooperative relationship between parties – adversarial - Consistent outcomes - Challenge for certain industries - Confidential process (usually, results unpublished) ## Lack of Transparency: - Parties themselves must be independently informed - 3rd party is not there to provide informatio - Mediator may not be aware of what the applicable rules are - Thus, some cases, a purely independent 3rd party may not be appropriate - Amount of legal information provided depends the situation ## Generally not suitable for: - Significant power imbalance - Fundamental misunderstanding of legal obligations - No trust and respect between parties ## Key features: - Benefits of adjudication and mediation, and provides solutions to drawbacks on either end of the spectrum - Framework allows for conciliator to run either way: up to them to choose - E.g. if parties are getting along well, then run entirely interest-based conciliation - 3rd party ensures outcomes sit within community expectations - Low costs - More creative process (ways that legislation may not necessarily be able to account for) - Conciliation = rights + interests - Through court or tribunal - Someone taking a step initiate proceedings/ascertain their rights - Highly legislative outcome - Conciliators engaged by court/tribunal (need degree of expertise) - Most exposures to law be through government agency (admin law) - E.g. NDIS - very difficult system, extremely complex legislation ## Ways