LAWS1111 Lecture Notes - Lecture 7: Alternative Dispute Resolution, Vmu, Restorative Justice
Lecture Outline
ADR (Alternative Dispute Resolution)
Disputes
(a)
What is ADR?
(b)
Different types
(c)
Advantages/Disadvantages
(d)
1.
Victim Conferencing
What is it?
(a)
Victim-Offender Mediation
(b)
Family Group Conferencing
(c)
2.
Alternative Dispute Resolution (ADR)
1.
(a) Disputes:
Conflicts between people/groups = an inevitable part of human society
•
Role of Law
One of the law's functions is to deal with disputes.
•
How?
System of rights/obligations that structure society.
○
Rules and principles by which disputes can be resolved
○
Specialist bodies that adjudicate disputes
○
Enforcement mechanisms.
○
•
The Court
Main one we think about.
•
Role is integral to resolving disputes - we think it is the main method of dispute
resolution.
•
We want to lessen the workload of the courts.
•
Litigation and Trial Process
Pre-trial
Discovery
○
Paperwork
○
•
Adversarial Trial
Evidence
○
Argument
○
•
Decision
Are binding.
○
Both parties need to both sign saying they agree.
○
•
Appeal?
If there is a grounds for an appeal.
○
•
(b) What is ADR?
The DR stands for Dispute Resolution•
A?
Alternative
○
Assisted
○
Additional
Sometimes leads to a court case afterwards
§
○
Affirmative?
Puts parties in a role where they can drive the decision themselves.
§
○
•
The Federal Family Court refers to it as 'Primary Dispute Resolution', because the
Court disposes of 95% of matters by means other than litigation.
•
Definition
'The processes that may be used within or outside courts and tribunals to manage,
resolve or determine disputes or to reach agreement and where the processes do
not involve traditional (more adversarial) trial or hearing processes, it describes
processes that may be non-adjudicatory as well as adjudicatory, which may
produce binding or non-binding decisions. It includes processes described as
negotiation, mediation, evaluation, case appraisal and arbitration.’
Tania Sourdin, Alternative Dispute Resolution (2012)
•
Resolving Disputes
Shows the amount of disputes that come into the system, and how many get
resolved in the court.
•
It takes away the need for courts.•
Litigation as 'Last Resort'
More positive way of approaching disputes.•
(c) Different Types of ADR
Facilitative
Involves a 3rd party, with no advisory or determinative role, who provides
assistance in managing the process of dispute resolution.
Mediation and facilitation.
§
○
•
Advisory
Involves a 3rd party who investigated the dispute and provides advice on the
facts and possible outcomes.
Investigation, case appraisal and dispute counselling.
§
○
•
Determinative
Involves a 3rd party investigating the dispute and the making of a
determination, which is potentially enforceable.
Adjudication and arbitration.
§
○
•
Differences
ADR processes can differ in terms of:
Length and formality;
○
Role of the parties;
○
Role of the 3rd party;
○
Subject of the dispute;
○
Reporting and referral requirements;
○
Objectives of the process; and,
○
Philosophical underpinnings.
○
•
Major Types of ADR
(i) Negotiation
Disputants work out an agreement between themselves.
‘A process in which the participants in a dispute personally, or through the
use of representatives such as lawyers or agents, identify issues to be
negotiated, develop options, consider alternatives and endeavour to reach an
agreement. If representatives are used, they act on behalf of the participants
and may have authority to reach agreements on their behalf.’ (NADRAC)
○
•
The 'Orange'
One sister gets the peel and one gets the juice.
○
•
(ii) Mediation
Where an impartial 3rd party helps disputants work out how to resolve a conflict.
The disputants, not the mediators, decide the terms of the agreement reached.
‘[A] process in which the participants, with the support of a mediator, identify
issues, develop options, consider alternatives and make decisions about
future actions and outcomes. The mediator acts as a third party to assist the
participants to reach their decision… Mediators do not advise upon, evaluate
or determine disputes.’ (National Mediation Accreditation System and Standards 2008)
○
•
(iii) Conciliation
'A process in which the parties to a dispute, with the assistance of a conciliator,
identify the issues in dispute, develop options, consider alternatives and endeavour
to reach an agreement. The conciliator may have an advisory role on the content of
the dispute or the outcomes of its resolution, but not a determinative role. The
conciliator may advise on or determine the process of conciliation whereby
resolution is attempted, and may make suggestions for terms of settlement, give
expert advice on likely settlement terms, and may actively encourage the
participants to reach an agreement.’ (NADRAC)
•
(iv) Arbitration
Where an impartial 3rd party (after hearing from both sides) makes a final, usually
binding, decision. The discussion and decision, while structured, may not be as
regulated by the formal procedures and rules of evidence as in a courtroom.
'[A] process in which the parties to a dispute present arguments and evidence
to the arbitrator who makes a determination' (NADRAC)
○
•
ADR in action
Green (a lawyer) dealt with a large scale commercial dispute around patients.•
Legal proceedings had commenced and the parties had spent several hundred
thousand dollars and multiple years waiting for a hearing.
•
They agreed instead to set up their own "mini-trial" moderated by a neutral 3rd
party (a former judge).
•
They met, exchanged information and senior management tried to resolve the
dispute.
•
After two days, the parties settled.•
Saved the parties >$1 million in legal costs and years more of waiting for a hearing
and then a judgement.
•
(v) Combined Models
A process in which multiple dispute resolution processes might come into play.•
E.g.
Negotiation-mediation = parties might begin by negotiating, but then utilise a
mediator to help reach final agreement.
○
Mediation-arbitration = a dispute resolution practitioner first uses one
process (mediation) and then a different one (arbitration);
○
•
When does ADR take place?
Pre-litigation ADR (WA)
Both the district and supreme court have mediation schemes.
The DC program held finalised only 84 (1.6%) of 5105 civil cases by trial
in 2016/17. The Court Registrars are all accredited mediators.
§
○
•
Court-connected ADR (Commonwealth)
WA Family Court requires Family Dispute Resolution to be attempted when a
person seeks a parenting order.
2016/17, 336 (12.1%) of 2430 cases were finalised by trial.
§
○
•
(d) Advantages/Disadvantages
Why might a party to a dispute want to use mediation instead of litigation.•
Why might a party to a dispute object to using mediation instead of litigation?•
Advantages
Parties focus on the problem, not each other.•
Both parties have an opportunity to tell their side of the story.•
Provides a setting in which each party listens to the other.•
Parties can hear how their behaviour is affecting, has affected, the other.•
More likely to keep to a solution if they are involved in the process of reaching it.•
Looks for a “win-win” situation, rather than the typical court winner/loser decision.•
More likely to take people’s specific situations into account.•
Parties are encouraged to identify what they really want.•
More likely to get to the root of the conflict.•
Holistic approach to the dispute between parties, not just the legal aspects.•
Looks not to the past but to the future, important where there is a continuing
relationship between the parties.
•
Disadvantages
Less powerful party just agrees to the stronger parties demands because they ‘fear
the worst’ outside the mediation setting.
•
Mediation is used as ‘cheap justice’.•
Can disguise responsibility and ignore rights.•
Poor citizens get diverted to mediation because its cheaper than giving them
government legal representation.
•
Compulsory mediation leads to parties just ‘going through the motions’.•
Mediation is inappropriate when…
Either party is unwilling.•
Either party is incapable of taking party or keeping to any agreement.•
It is not in one party's interests to settle.•
There is the threat of violence.•
The dispute needs a public judgement.•
Victim Conferencing2.
Different Types
Victim Offender Mediation (VOM)
Usually involves a victim and an offender in direct mediation facilitated by
mediators facilitated by mediators or facilitators.
○
•
Family Group Conferencing (FGC)
Similar, but includes family, support persons and outside community
representatives as well.
○
•
(b) Victim Offender Mediation
Victim-offender mediation is a voluntary process of communication, conducted by
a neutral mediator, which allows victims to express their needs and feelings, and
offenders to accept and act on their responsibilities. This mediation process has
benefits for victims and offenders at all stages of the criminal justice process
because it deals with the personal effects of crime not usually addressed by the
formal justice system. Hurt, pain and loss suffered by victims are acknowledged by
offenders, and this acknowledgement is often the most healing part of the process.
When victims know their pain has been heard, they stop reliving the event and
begin to put the offence behind them.’ - Wynne, ‘Victim-Offender Mediation in Practice’ (2011).
•
WA Mediation
Initiated by victim, court or government services.
VMU officers sit in at District Court and Magistrates Court.
○
•
Available where an offender has pled guilty.•
Usually involves an apology (verbal or written), an explanation for the offence,
discussion of background and/or ongoing issues, the return of property and/or
monetary compensation, and payment of the victim's out-of-pocket expenses.
•
Mediation Process
Advantages
Victim - hold offenders accountable, receive apology/compensation, get
directly involved.
○
Offender - possible sentencing reduction, making amends.
○
Community - rehabilitation.
○
•
What does it look like in practice?
David (aged 19) started using drugs. He lost his job and ran short of money. His
family were friends with the neighbours, Mr and Mrs Brown. Mrs Brown had some
gold chains. David called at the Browns’ house and stole the chains. Mr and Mrs
Brown were extremely hurt and angry and David’s father could not forgive his son.
•
A mediator called to see both David and Mr and Mrs Brown, and found they
needed to say things to one another. Mr and Mrs Brown wanted to do this quickly
as they felt it would ruin Christmas if the families were still estranged.
•
A direct mediation meeting was arranged, unusually, at the victims’ house. This
was to enable David to feel he could enter their house again. Mr and Mrs Brown
expressed their feelings. David apologised and said he had now given up drugs. He
wanted to pay back the money. They agreed that he should pay £2 a week until he
got employment.
•
Mr and Mrs Brown wanted the court to be aware of the agreement. David was
sentenced to 12 months probation with a condition of hostel residence. The
families were reconciled and his father was finally able to forgive him.
•
Three months later David was still firmly committed to making the reparation
payments and was doing well on probation. - Wynne, ‘Victim-Offender Mediation in Practice’ (2011).
•
(c) Family Group Conferencing
‘This type of intervention is based on the idea of bringing the young offender, the
victim, and their respective families and friends together in a meeting chaired by an
appropriate independent adult (juvenile justice worker or police officer).
Collectively, the group goes through the reasons for the crime, the harm suffered,
and the best ways to resolve the issues. Usually, some kind of apology is made by
the offender to the victim, and often the offender has to repair the damage they
have caused in some way (through undertaking community work, or mowing lawns
of the victim for a month).’ - Cunneen and White, Juvenile Justice: Youth and Crime in Australia (2007).
•
What happens in FGC?
Differs across Australian jurisdictions in terms of…
The kinds of offenders for whom conferencing is available;
○
The kinds of offences that can be conferenced;
○
Who must agree to the outcome (though it is legally binding in all
jurisdictions); and
○
The length of time to complete an outcome
○
•
Two major models: The Wagga Wagga and NZ models
Similarities
Diversion from court prosecution
○
Young offender has admitted the offence;
○
Attendance by the offender and their family/supporters, a police officer, a
convenor;
○
Discussion of the offence and its impact;
○
Everybody gets a chance to talk ask/answer questions; and
○
Discussion of the outcome (agreement or undertaking) the offender will
complete.
○
•
Some Differences
Wagga model is about reintegrative shaming
○
The role of police; and
○
The level of cultural respect.
○
•
Benefits of FGC
The Re-Integrative Shaming Experiments Project (RISE), beginning in 1995, studied
the effect of these conferences. It found that-
Offenders report greater procedural justice in conferences than in courts;
○
Offenders report higher levels of restorative justice in conferences than in
courts;
○
Conferences increased offenders’ respect for the police and law more than
court; and,
○
Victims’ sense of restorative justice is higher for those who went to
conferences than for those who went to court.
○
•
Facing the Demons
1999 documentary directed by Avia Zeigler•
Background -
In 1994 four young men attempted an armed hold-up in a suburban Sydney
Pizza Hut.
○
An 18 year old university student, a part-time pizza delivery boy, Michael
Marslew, was shot in the back of the head at point blank range whilst
attempting to warn his co-workers.
○
6 months later four young men were arrested and convicted of his murder,
with sentences ranging from 8 to 18 years imprisonment.
○
At the time of the documentary they had already served about 5 years.
○
•
Unusual for a conference because of the nature of the offence, and the lack of an
intended legal effect.
•
Lecture
Wednesday, 18 April 2018
12:46 pm
Lecture Outline
ADR (Alternative Dispute Resolution)
Disputes
(a)
What is ADR?
(b)
Different types
(c)
Advantages/Disadvantages
(d)
1.
Victim Conferencing
What is it?
(a)
Victim-Offender Mediation
(b)
Family Group Conferencing
(c)
2.
Alternative Dispute Resolution (ADR)
1.
(a) Disputes:
Conflicts between people/groups = an inevitable part of human society
•
Role of Law
One of the law's functions is to deal with disputes.
•
How?
System of rights/obligations that structure society.
○
Rules and principles by which disputes can be resolved
○
Specialist bodies that adjudicate disputes
○
Enforcement mechanisms.
○
•
The Court
Main one we think about.
•
Role is integral to resolving disputes - we think it is the main method of dispute
resolution.
•
We want to lessen the workload of the courts.
•
Litigation and Trial Process
Pre-trial
Discovery
○
Paperwork
○
•
Adversarial Trial
Evidence
○
Argument
○
•
Decision
Are binding.
○
Both parties need to both sign saying they agree.
○
•
Appeal?
If there is a grounds for an appeal.
○
•
(b) What is ADR?
The DR stands for Dispute Resolution•
A?
Alternative
○
Assisted
○
Additional
Sometimes leads to a court case afterwards
§
○
Affirmative?
Puts parties in a role where they can drive the decision themselves.
§
○
•
The Federal Family Court refers to it as 'Primary Dispute Resolution', because the
Court disposes of 95% of matters by means other than litigation.
•
Definition
'The processes that may be used within or outside courts and tribunals to manage,
resolve or determine disputes or to reach agreement and where the processes do
not involve traditional (more adversarial) trial or hearing processes, it describes
processes that may be non-adjudicatory as well as adjudicatory, which may
produce binding or non-binding decisions. It includes processes described as
negotiation, mediation, evaluation, case appraisal and arbitration.’
Tania Sourdin, Alternative Dispute Resolution (2012)
•
Resolving Disputes
Shows the amount of disputes that come into the system, and how many get
resolved in the court.
•
It takes away the need for courts.•
Litigation as 'Last Resort'
More positive way of approaching disputes.•
(c) Different Types of ADR
Facilitative
Involves a 3rd party, with no advisory or determinative role, who provides
assistance in managing the process of dispute resolution.
Mediation and facilitation.
§
○
•
Advisory
Involves a 3rd party who investigated the dispute and provides advice on the
facts and possible outcomes.
Investigation, case appraisal and dispute counselling.
§
○
•
Determinative
Involves a 3rd party investigating the dispute and the making of a
determination, which is potentially enforceable.
Adjudication and arbitration.
§
○
•
Differences
ADR processes can differ in terms of:
Length and formality;
○
Role of the parties;
○
Role of the 3rd party;
○
Subject of the dispute;
○
Reporting and referral requirements;
○
Objectives of the process; and,
○
Philosophical underpinnings.
○
•
Major Types of ADR
(i) Negotiation
Disputants work out an agreement between themselves.
‘A process in which the participants in a dispute personally, or through the
use of representatives such as lawyers or agents, identify issues to be
negotiated, develop options, consider alternatives and endeavour to reach an
agreement. If representatives are used, they act on behalf of the participants
and may have authority to reach agreements on their behalf.’ (NADRAC)
○
•
The 'Orange'
One sister gets the peel and one gets the juice.
○
•
(ii) Mediation
Where an impartial 3rd party helps disputants work out how to resolve a conflict.
The disputants, not the mediators, decide the terms of the agreement reached.
‘[A] process in which the participants, with the support of a mediator, identify
issues, develop options, consider alternatives and make decisions about
future actions and outcomes. The mediator acts as a third party to assist the
participants to reach their decision… Mediators do not advise upon, evaluate
or determine disputes.’ (National Mediation Accreditation System and Standards 2008)
○
•
(iii) Conciliation
'A process in which the parties to a dispute, with the assistance of a conciliator,
identify the issues in dispute, develop options, consider alternatives and endeavour
to reach an agreement. The conciliator may have an advisory role on the content of
the dispute or the outcomes of its resolution, but not a determinative role. The
conciliator may advise on or determine the process of conciliation whereby
resolution is attempted, and may make suggestions for terms of settlement, give
expert advice on likely settlement terms, and may actively encourage the
participants to reach an agreement.’ (NADRAC)
•
(iv) Arbitration
Where an impartial 3rd party (after hearing from both sides) makes a final, usually
binding, decision. The discussion and decision, while structured, may not be as
regulated by the formal procedures and rules of evidence as in a courtroom.
'[A] process in which the parties to a dispute present arguments and evidence
to the arbitrator who makes a determination' (NADRAC)
○
•
ADR in action
Green (a lawyer) dealt with a large scale commercial dispute around patients.•
Legal proceedings had commenced and the parties had spent several hundred
thousand dollars and multiple years waiting for a hearing.
•
They agreed instead to set up their own "mini-trial" moderated by a neutral 3rd
party (a former judge).
•
They met, exchanged information and senior management tried to resolve the
dispute.
•
After two days, the parties settled.•
Saved the parties >$1 million in legal costs and years more of waiting for a hearing
and then a judgement.
•
(v) Combined Models
A process in which multiple dispute resolution processes might come into play.•
E.g.
Negotiation-mediation = parties might begin by negotiating, but then utilise a
mediator to help reach final agreement.
○
Mediation-arbitration = a dispute resolution practitioner first uses one
process (mediation) and then a different one (arbitration);
○
•
When does ADR take place?
Pre-litigation ADR (WA)
Both the district and supreme court have mediation schemes.
The DC program held finalised only 84 (1.6%) of 5105 civil cases by trial
in 2016/17. The Court Registrars are all accredited mediators.
§
○
•
Court-connected ADR (Commonwealth)
WA Family Court requires Family Dispute Resolution to be attempted when a
person seeks a parenting order.
2016/17, 336 (12.1%) of 2430 cases were finalised by trial.
§
○
•
(d) Advantages/Disadvantages
Why might a party to a dispute want to use mediation instead of litigation.•
Why might a party to a dispute object to using mediation instead of litigation?•
Advantages
Parties focus on the problem, not each other.•
Both parties have an opportunity to tell their side of the story.•
Provides a setting in which each party listens to the other.•
Parties can hear how their behaviour is affecting, has affected, the other.•
More likely to keep to a solution if they are involved in the process of reaching it.•
Looks for a “win-win” situation, rather than the typical court winner/loser decision.•
More likely to take people’s specific situations into account.•
Parties are encouraged to identify what they really want.•
More likely to get to the root of the conflict.•
Holistic approach to the dispute between parties, not just the legal aspects.•
Looks not to the past but to the future, important where there is a continuing
relationship between the parties.
•
Disadvantages
Less powerful party just agrees to the stronger parties demands because they ‘fear
the worst’ outside the mediation setting.
•
Mediation is used as ‘cheap justice’.•
Can disguise responsibility and ignore rights.•
Poor citizens get diverted to mediation because its cheaper than giving them
government legal representation.
•
Compulsory mediation leads to parties just ‘going through the motions’.•
Mediation is inappropriate when…
Either party is unwilling.•
Either party is incapable of taking party or keeping to any agreement.•
It is not in one party's interests to settle.•
There is the threat of violence.•
The dispute needs a public judgement.•
Victim Conferencing2.
Different Types
Victim Offender Mediation (VOM)
Usually involves a victim and an offender in direct mediation facilitated by
mediators facilitated by mediators or facilitators.
○
•
Family Group Conferencing (FGC)
Similar, but includes family, support persons and outside community
representatives as well.
○
•
(b) Victim Offender Mediation
Victim-offender mediation is a voluntary process of communication, conducted by
a neutral mediator, which allows victims to express their needs and feelings, and
offenders to accept and act on their responsibilities. This mediation process has
benefits for victims and offenders at all stages of the criminal justice process
because it deals with the personal effects of crime not usually addressed by the
formal justice system. Hurt, pain and loss suffered by victims are acknowledged by
offenders, and this acknowledgement is often the most healing part of the process.
When victims know their pain has been heard, they stop reliving the event and
begin to put the offence behind them.’ - Wynne, ‘Victim-Offender Mediation in Practice’ (2011).
•
WA Mediation
Initiated by victim, court or government services.
VMU officers sit in at District Court and Magistrates Court.
○
•
Available where an offender has pled guilty.•
Usually involves an apology (verbal or written), an explanation for the offence,
discussion of background and/or ongoing issues, the return of property and/or
monetary compensation, and payment of the victim's out-of-pocket expenses.
•
Mediation Process
Advantages
Victim - hold offenders accountable, receive apology/compensation, get
directly involved.
○
Offender - possible sentencing reduction, making amends.
○
Community - rehabilitation.
○
•
What does it look like in practice?
David (aged 19) started using drugs. He lost his job and ran short of money. His
family were friends with the neighbours, Mr and Mrs Brown. Mrs Brown had some
gold chains. David called at the Browns’ house and stole the chains. Mr and Mrs
Brown were extremely hurt and angry and David’s father could not forgive his son.
•
A mediator called to see both David and Mr and Mrs Brown, and found they
needed to say things to one another. Mr and Mrs Brown wanted to do this quickly
as they felt it would ruin Christmas if the families were still estranged.
•
A direct mediation meeting was arranged, unusually, at the victims’ house. This
was to enable David to feel he could enter their house again. Mr and Mrs Brown
expressed their feelings. David apologised and said he had now given up drugs. He
wanted to pay back the money. They agreed that he should pay £2 a week until he
got employment.
•
Mr and Mrs Brown wanted the court to be aware of the agreement. David was
sentenced to 12 months probation with a condition of hostel residence. The
families were reconciled and his father was finally able to forgive him.
•
Three months later David was still firmly committed to making the reparation
payments and was doing well on probation. - Wynne, ‘Victim-Offender Mediation in Practice’ (2011).
•
(c) Family Group Conferencing
‘This type of intervention is based on the idea of bringing the young offender, the
victim, and their respective families and friends together in a meeting chaired by an
appropriate independent adult (juvenile justice worker or police officer).
Collectively, the group goes through the reasons for the crime, the harm suffered,
and the best ways to resolve the issues. Usually, some kind of apology is made by
the offender to the victim, and often the offender has to repair the damage they
have caused in some way (through undertaking community work, or mowing lawns
of the victim for a month).’ - Cunneen and White, Juvenile Justice: Youth and Crime in Australia (2007).
•
What happens in FGC?
Differs across Australian jurisdictions in terms of…
The kinds of offenders for whom conferencing is available;
○
The kinds of offences that can be conferenced;
○
Who must agree to the outcome (though it is legally binding in all
jurisdictions); and
○
The length of time to complete an outcome
○
•
Two major models: The Wagga Wagga and NZ models
Similarities
Diversion from court prosecution
○
Young offender has admitted the offence;
○
Attendance by the offender and their family/supporters, a police officer, a
convenor;
○
Discussion of the offence and its impact;
○
Everybody gets a chance to talk ask/answer questions; and
○
Discussion of the outcome (agreement or undertaking) the offender will
complete.
○
•
Some Differences
Wagga model is about reintegrative shaming
○
The role of police; and
○
The level of cultural respect.
○
•
Benefits of FGC
The Re-Integrative Shaming Experiments Project (RISE), beginning in 1995, studied
the effect of these conferences. It found that-
Offenders report greater procedural justice in conferences than in courts;
○
Offenders report higher levels of restorative justice in conferences than in
courts;
○
Conferences increased offenders’ respect for the police and law more than
court; and,
○
Victims’ sense of restorative justice is higher for those who went to
conferences than for those who went to court.
○
•
Facing the Demons
1999 documentary directed by Avia Zeigler•
Background -
In 1994 four young men attempted an armed hold-up in a suburban Sydney
Pizza Hut.
○
An 18 year old university student, a part-time pizza delivery boy, Michael
Marslew, was shot in the back of the head at point blank range whilst
attempting to warn his co-workers.
○
6 months later four young men were arrested and convicted of his murder,
with sentences ranging from 8 to 18 years imprisonment.
○
At the time of the documentary they had already served about 5 years.
○
•
Unusual for a conference because of the nature of the offence, and the lack of an
intended legal effect.
•
Lecture
Wednesday, 18 April 2018
12:46 pm
Lecture Outline
ADR (Alternative Dispute Resolution)
Disputes(a)
What is ADR?(b)
Different types(c)
Advantages/Disadvantages(d)
1.
Victim Conferencing
What is it?(a)
Victim-Offender Mediation(b)
Family Group Conferencing(c)
2.
Alternative Dispute Resolution (ADR)1.
(a) Disputes:
Conflicts between people/groups = an inevitable part of human society•
Role of Law
One of the law's functions is to deal with disputes.•
How?
System of rights/obligations that structure society.
○
Rules and principles by which disputes can be resolved
○
Specialist bodies that adjudicate disputes
○
Enforcement mechanisms.
○
•
The Court
Main one we think about.•
Role is integral to resolving disputes - we think it is the main method of dispute
resolution.
•
We want to lessen the workload of the courts.•
Litigation and Trial Process
Pre-trial
Discovery
○
Paperwork
○
•
Adversarial Trial
Evidence
○
Argument
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Decision
Are binding.
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Both parties need to both sign saying they agree.
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Appeal?
If there is a grounds for an appeal.
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(b) What is ADR?
The DR stands for Dispute Resolution
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A?
Alternative
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Assisted
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Additional
Sometimes leads to a court case afterwards
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Affirmative?
Puts parties in a role where they can drive the decision themselves.
§
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The Federal Family Court refers to it as 'Primary Dispute Resolution', because the
Court disposes of 95% of matters by means other than litigation.
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Definition
'The processes that may be used within or outside courts and tribunals to manage,
resolve or determine disputes or to reach agreement and where the processes do
not involve traditional (more adversarial) trial or hearing processes, it describes
processes that may be non-adjudicatory as well as adjudicatory, which may
produce binding or non-binding decisions. It includes processes described as
negotiation, mediation, evaluation, case appraisal and arbitration.’
Tania Sourdin, Alternative Dispute Resolution (2012)
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Resolving Disputes
Shows the amount of disputes that come into the system, and how many get
resolved in the court.
•
It takes away the need for courts.•
Litigation as 'Last Resort'
More positive way of approaching disputes.•
(c) Different Types of ADR
Facilitative
Involves a 3rd party, with no advisory or determinative role, who provides
assistance in managing the process of dispute resolution.
Mediation and facilitation.
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Advisory
Involves a 3rd party who investigated the dispute and provides advice on the
facts and possible outcomes.
Investigation, case appraisal and dispute counselling.
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Determinative
Involves a 3rd party investigating the dispute and the making of a
determination, which is potentially enforceable.
Adjudication and arbitration.
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Differences
ADR processes can differ in terms of:
Length and formality;
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Role of the parties;
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Role of the 3rd party;
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Subject of the dispute;
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Reporting and referral requirements;
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Objectives of the process; and,
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Philosophical underpinnings.
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Major Types of ADR
(i) Negotiation
Disputants work out an agreement between themselves.
‘A process in which the participants in a dispute personally, or through the
use of representatives such as lawyers or agents, identify issues to be
negotiated, develop options, consider alternatives and endeavour to reach an
agreement. If representatives are used, they act on behalf of the participants
and may have authority to reach agreements on their behalf.’ (NADRAC)
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The 'Orange'
One sister gets the peel and one gets the juice.
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(ii) Mediation
Where an impartial 3rd party helps disputants work out how to resolve a conflict.
The disputants, not the mediators, decide the terms of the agreement reached.
‘[A] process in which the participants, with the support of a mediator, identify
issues, develop options, consider alternatives and make decisions about
future actions and outcomes. The mediator acts as a third party to assist the
participants to reach their decision… Mediators do not advise upon, evaluate
or determine disputes.’ (National Mediation Accreditation System and Standards 2008)
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(iii) Conciliation
'A process in which the parties to a dispute, with the assistance of a conciliator,
identify the issues in dispute, develop options, consider alternatives and endeavour
to reach an agreement. The conciliator may have an advisory role on the content of
the dispute or the outcomes of its resolution, but not a determinative role. The
conciliator may advise on or determine the process of conciliation whereby
resolution is attempted, and may make suggestions for terms of settlement, give
expert advice on likely settlement terms, and may actively encourage the
participants to reach an agreement.’ (NADRAC)
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(iv) Arbitration
Where an impartial 3rd party (after hearing from both sides) makes a final, usually
binding, decision. The discussion and decision, while structured, may not be as
regulated by the formal procedures and rules of evidence as in a courtroom.
'[A] process in which the parties to a dispute present arguments and evidence
to the arbitrator who makes a determination' (NADRAC)
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ADR in action
Green (a lawyer) dealt with a large scale commercial dispute around patients.•
Legal proceedings had commenced and the parties had spent several hundred
thousand dollars and multiple years waiting for a hearing.
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They agreed instead to set up their own "mini-trial" moderated by a neutral 3rd
party (a former judge).
•
They met, exchanged information and senior management tried to resolve the
dispute.
•
After two days, the parties settled.•
Saved the parties >$1 million in legal costs and years more of waiting for a hearing
and then a judgement.
•
(v) Combined Models
A process in which multiple dispute resolution processes might come into play.•
E.g.
Negotiation-mediation = parties might begin by negotiating, but then utilise a
mediator to help reach final agreement.
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Mediation-arbitration = a dispute resolution practitioner first uses one
process (mediation) and then a different one (arbitration);
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When does ADR take place?
Pre-litigation ADR (WA)
Both the district and supreme court have mediation schemes.
The DC program held finalised only 84 (1.6%) of 5105 civil cases by trial
in 2016/17. The Court Registrars are all accredited mediators.
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Court-connected ADR (Commonwealth)
WA Family Court requires Family Dispute Resolution to be attempted when a
person seeks a parenting order.
2016/17, 336 (12.1%) of 2430 cases were finalised by trial.
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(d) Advantages/Disadvantages
Why might a party to a dispute want to use mediation instead of litigation.•
Why might a party to a dispute object to using mediation instead of litigation?•
Advantages
Parties focus on the problem, not each other.•
Both parties have an opportunity to tell their side of the story.•
Provides a setting in which each party listens to the other.•
Parties can hear how their behaviour is affecting, has affected, the other.•
More likely to keep to a solution if they are involved in the process of reaching it.•
Looks for a “win-win” situation, rather than the typical court winner/loser decision.•
More likely to take people’s specific situations into account.•
Parties are encouraged to identify what they really want.•
More likely to get to the root of the conflict.•
Holistic approach to the dispute between parties, not just the legal aspects.•
Looks not to the past but to the future, important where there is a continuing
relationship between the parties.
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Disadvantages
Less powerful party just agrees to the stronger parties demands because they ‘fear
the worst’ outside the mediation setting.
•
Mediation is used as ‘cheap justice’.•
Can disguise responsibility and ignore rights.•
Poor citizens get diverted to mediation because its cheaper than giving them
government legal representation.
•
Compulsory mediation leads to parties just ‘going through the motions’.•
Mediation is inappropriate when…
Either party is unwilling.•
Either party is incapable of taking party or keeping to any agreement.•
It is not in one party's interests to settle.•
There is the threat of violence.•
The dispute needs a public judgement.•
Victim Conferencing2.
Different Types
Victim Offender Mediation (VOM)
Usually involves a victim and an offender in direct mediation facilitated by
mediators facilitated by mediators or facilitators.
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Family Group Conferencing (FGC)
Similar, but includes family, support persons and outside community
representatives as well.
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(b) Victim Offender Mediation
Victim-offender mediation is a voluntary process of communication, conducted by
a neutral mediator, which allows victims to express their needs and feelings, and
offenders to accept and act on their responsibilities. This mediation process has
benefits for victims and offenders at all stages of the criminal justice process
because it deals with the personal effects of crime not usually addressed by the
formal justice system. Hurt, pain and loss suffered by victims are acknowledged by
offenders, and this acknowledgement is often the most healing part of the process.
When victims know their pain has been heard, they stop reliving the event and
begin to put the offence behind them.’ - Wynne, ‘Victim-Offender Mediation in Practice’ (2011).
•
WA Mediation
Initiated by victim, court or government services.
VMU officers sit in at District Court and Magistrates Court.
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Available where an offender has pled guilty.•
Usually involves an apology (verbal or written), an explanation for the offence,
discussion of background and/or ongoing issues, the return of property and/or
monetary compensation, and payment of the victim's out-of-pocket expenses.
•
Mediation Process
Advantages
Victim - hold offenders accountable, receive apology/compensation, get
directly involved.
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Offender - possible sentencing reduction, making amends.
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Community - rehabilitation.
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What does it look like in practice?
David (aged 19) started using drugs. He lost his job and ran short of money. His
family were friends with the neighbours, Mr and Mrs Brown. Mrs Brown had some
gold chains. David called at the Browns’ house and stole the chains. Mr and Mrs
Brown were extremely hurt and angry and David’s father could not forgive his son.
•
A mediator called to see both David and Mr and Mrs Brown, and found they
needed to say things to one another. Mr and Mrs Brown wanted to do this quickly
as they felt it would ruin Christmas if the families were still estranged.
•
A direct mediation meeting was arranged, unusually, at the victims’ house. This
was to enable David to feel he could enter their house again. Mr and Mrs Brown
expressed their feelings. David apologised and said he had now given up drugs. He
wanted to pay back the money. They agreed that he should pay £2 a week until he
got employment.
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Mr and Mrs Brown wanted the court to be aware of the agreement. David was
sentenced to 12 months probation with a condition of hostel residence. The
families were reconciled and his father was finally able to forgive him.
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Three months later David was still firmly committed to making the reparation
payments and was doing well on probation. - Wynne, ‘Victim-Offender Mediation in Practice’ (2011).
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(c) Family Group Conferencing
‘This type of intervention is based on the idea of bringing the young offender, the
victim, and their respective families and friends together in a meeting chaired by an
appropriate independent adult (juvenile justice worker or police officer).
Collectively, the group goes through the reasons for the crime, the harm suffered,
and the best ways to resolve the issues. Usually, some kind of apology is made by
the offender to the victim, and often the offender has to repair the damage they
have caused in some way (through undertaking community work, or mowing lawns
of the victim for a month).’ - Cunneen and White, Juvenile Justice: Youth and Crime in Australia (2007).
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What happens in FGC?
Differs across Australian jurisdictions in terms of…
The kinds of offenders for whom conferencing is available;
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The kinds of offences that can be conferenced;
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Who must agree to the outcome (though it is legally binding in all
jurisdictions); and
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The length of time to complete an outcome
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Two major models: The Wagga Wagga and NZ models
Similarities
Diversion from court prosecution
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Young offender has admitted the offence;
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Attendance by the offender and their family/supporters, a police officer, a
convenor;
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Discussion of the offence and its impact;
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Everybody gets a chance to talk ask/answer questions; and
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Discussion of the outcome (agreement or undertaking) the offender will
complete.
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Some Differences
Wagga model is about reintegrative shaming
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The role of police; and
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The level of cultural respect.
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Benefits of FGC
The Re-Integrative Shaming Experiments Project (RISE), beginning in 1995, studied
the effect of these conferences. It found that-
Offenders report greater procedural justice in conferences than in courts;
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Offenders report higher levels of restorative justice in conferences than in
courts;
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Conferences increased offenders’ respect for the police and law more than
court; and,
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Victims’ sense of restorative justice is higher for those who went to
conferences than for those who went to court.
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Facing the Demons
1999 documentary directed by Avia Zeigler•
Background -
In 1994 four young men attempted an armed hold-up in a suburban Sydney
Pizza Hut.
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An 18 year old university student, a part-time pizza delivery boy, Michael
Marslew, was shot in the back of the head at point blank range whilst
attempting to warn his co-workers.
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6 months later four young men were arrested and convicted of his murder,
with sentences ranging from 8 to 18 years imprisonment.
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At the time of the documentary they had already served about 5 years.
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Unusual for a conference because of the nature of the offence, and the lack of an
intended legal effect.
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Lecture
Wednesday, 18 April 2018 12:46 pm
Document Summary
Conflicts between people/groups = an inevitable part of human society. One of the law"s functions is to deal with disputes. Rules and principles by which disputes can be resolved. Role is integral to resolving disputes - we think it is the main method of dispute resolution. We want to lessen the workload of the courts. Both parties need to both sign saying they agree. Puts parties in a role where they can drive the decision themselves. The federal family court refers to it as "primary dispute resolution", because the. Court disposes of 95% of matters by means other than litigation. It includes processes described as negotiation, mediation, evaluation, case appraisal and arbitration. ". Shows the amount of disputes that come into the system, and how many get resolved in the court. More positive way of approaching disputes. (c) different types of adr.
