The Productivity Commission inquiry into Access to Justice has highlighted yet again a fear and ignorance of some lawyers about ADR, especially mediation. Those with a deep knowledge of ADR had hoped that fear and ignorance was a thing of the past. The Law Council of Australia submission at paragraph 338 relating to mediation is remarkable, not just because of its highly emotive language. It lacks evidence for its imputations.
This is what the Law Council submitted to the Productivity Commission (my emphasis);
338. It has been said that “Mediation is not about just settlement, it is just about settlement”. No doubt it is good for parties to settle cases (and that is what for centuries their professional advisors have helped them to do) but settlement achieved through oppression is not so obviously a desirable end. Then it is just the successful exercise of vulgar force – the very thing that the system of justice was invented to defeat.
Oppression and vulgar force?
I wonder if anyone has an experience of such problems in mediation. Certainly I know of no such complaint or litigation based on such behaviour.
What the Law Council want the Productivity Commission to hear is; that settlements reached at mediation are not “just”, that mediation is “just about settlement”, that mediation achieves settlement through “oppression” and the “successful exercise of vulgar force”.
The Law Council submission evokes a cute and unattributed saying in support of its emotive arguments. I have tried without success to have the Law Council correct with the Productivity Commission the impression that its submission gives. The time has come for someone to correct and comment. I realise that in doing so I risk the same unsubstantiated invective being unleashed on me. That is why I have asked the Law Council of Australia to correct its imputations AND to provide evidence of its outrageous imputations about mediation. So far they have not.
There is no evidence that settlements reached at mediation are not just. In over 20 years of intense ADR activity in Australia there is not a whisper let alone the roar that would be expected from the disgruntled when they believe they are “hard done by”. In this case, knowing the human tendency to complain if injustice is perceived, the absence of evidence must surely be evidence of the absence of injustice. The same cannot be said for litigation before the courts. One only has to look at the popular press to find evidence of the dissatisfaction (sometimes expressed by Attorneys General) about perceived “injustice” delivered by courts. I hasten to say that most of that dissatisfaction is without merit. Almost always Australian courts do a marvellous (and very even handed) job at making decisions. Those decisions often seem unjust to the loser.
Mediation is about much more than just settlement. A few of the benefits participants are offered if they engage are; in mediation you get to tell your story, if you chose, in your own words, without interruption or cross examination, you get to clarify misunderstandings, mend relationships, listen and exchange perspectives and stories, to understand more deeply, to vent productively, to reality test alternatives, to brainstorm options for resolution, to negotiate directly with or without assistance and yes if after all that it is better to resolve your dispute than continue to argue then settlement can be achieved. Settlement is never mandatory at mediation, even if the process of mediation is mandated.
As for oppression and the “successful exercise of vulgar force”, if this was happening it would be dreadful. If it is occurring in mediation then I encourage the Law Council to provide evidence to me and to the professional bodies that represent mediators so that something can be done about it. I suspect that such evidence does not exist, as surely the Law Council would refer to such evidence in its submissions given the emotion with which the “argument” is raised. What we do know, as a fact, is that in about 1994 when governments were looking for ways in which to create a level playing field for farmers and tenants, who complained of being oppressed by banks and landlords, mediation was offered as a solution. When it was suggested that mediation be required before court action it was the banks and landlords who complained that their unfettered access to the courts was being denied, preventing them from immediate exercise of legal remedies. The Farm Debt Mediation Acts and the Retail Leases Acts continue to operate in many states with not a whisper by farmers or tenants or their lobby groups of an allegation of oppression or the “exercise of vulgar force”.
The truth about mediation that the Law Council chooses to ignore or does not understand is that at mediation everyone is free to leave and exercise their legal rights, whenever they wish. It is that freedom that ensures the concerns that the Law Council express are never realised.
Indeed the standards that apply to mediators accredited under the National Mediation Accreditation System require mediators to address power imbalances;
4 Power issues
Some disputes may not be appropriate for mediation processes because of power imbalance, safety, control and/or intimidation issues.
If at any time abuse is present, or implied or threatened, the mediator shall take appropriate measures to ensure the safety of participants.
(a) activating appropriate pre-determined security protocols;
(b) using video conferencing or other personal protective and screening arrangements;
(c) requiring separate sessions with the participants;
(d) enabling a friend, representative, advocate, or legal representative to attend the mediation sessions;
(e) referring the participants to appropriate resources; and
(f) suspending or terminating the mediation session, with appropriate steps to protect the safety of the participants. (See MSB.org.au)
I know of no such standard that applies to lawyers in their practice.
The Law Council of Australia undoubtedly knows that thousands of the members of its constituent bodies are mediators accredited under NMAS. It insults those lawyers by suggesting that they do not know how to manage mediation when there are power imbalances.
In my 15 years as a mediator and 30 as a commercial lawyer I have heard such unsubstantiated arguments many times, but never have I experienced the argument infected with such raw emotion and lack of evidence demonstrated by the Law Council. One can hear in their words how fearful they are of the encroachment of ADR and mediation on the litigation business model of the lawyers they represent. Those fears are unfounded.
Let’s be clear.
There is no evidence over the last 30 years that there is less court determination as a result of the successful use of mediation. Mediators are NOT competition for lawyers nor do they want to be. In fact mediators recognise the vital role that the legal justice system plays in keeping our society peaceful and fair. Mediators support the rule of law without hesitation. The truth is (sadly I suspect for lawyers’ egos) that the vast majority of disputes have and always will be resolved without anyone seeing a lawyer and of those who do go “down the legal path” most cases are settled well before a judge is involved let alone makes a decision. If this was not the case the legal system would grind to a halt under the burden of pending trials.
Access to justice is far too important for the discussion about it to be infected with glib statements and arguments not supported by facts. I believe that lawyers and mediators should be collaborating (as they do in mediation) and offering positive creative ideas to that our society can be fairer and more peaceful with less “wealth and health” burdens for those who find themselves in serious disagreements.
If you would like to see my correspondence with the Law Council, give me a call,.
Steve Lancken BA LLB MPACS Accredited Specialist Commercial Litigation and Mediation.
 Farm Debt Mediation Act (NSW) 1994 and Retail Leases Act (NSW) 1994
 At last count there were 328 accredited mediators at the Victorian Bar Association (for example)