The past couple of years have seen dispute resolution increasingly politicised in Australia, as we have explained elsewhere. The Victorian election, held on 29 November this year and which resulted in a change of government, is no exception.
The new Australian Labor Party (ALP) government has made an explicit commitment to increasing use of ADR in Victoria. The government’s pre-election platform states (at p 67-8):
Where disputes occur, Government should provide Victorians with options to resolve them at the earliest stage to avoid the cost, stress and delay that is often a feature of traditional court proceedings.
Specific policies promised in relation to ADR include increased promotion of mediation and ramping up the dispute resolution options at VCAT, the Victorian Civil and Administrative Tribunal, so that it is restored as “a simple, low cost jurisdiction that assists parties seeking speedy resolution of their matters in a less formal and intimidating environment.”
The government has also committed in its platform to providing increased access to justice for vulnerable Victorians (p.67). It has promised an inquiry into access to justice in Victoria including into availability and funding of Community Legal Centres (CLCs). Specific measures pledged to improve access to justice include increased funding for Victoria Legal Aid, addressing “the clogging of the court system”, fixing the problems with funding cuts at VCAT and encouraging more lawyers to work at Community Legal Centres through providing incentives such as scholarships and HECS rebates.
Related promises in the ALP platform include mainstreaming into the broader court system some of the successes of the problem-oriented courts set up in Victoria over the past decade (p.64) so that offenders are better connected to the services they need to address their offending.
While the previous government was in power Victoria from 2010-14, ADR policy moved slowly at best. The Attorney-General for that government, Robert Clark, had publicly expressed his commitment to ADR, stating to the LEADR Kongress in September last year: “The State government is a strong supporter of ADR and the role it can play in bringing about just outcomes in a timely and cost-effective manner.” However the record of the coalition government supporting ADR did not match these words when, in 2011, it repealed legislation containing broad-scale pre-action procedures mandating participation in ADR for all civil disputes before the courts. In passing these reforms, the Attorney-General stated in Hansard on 10 Feb 2011 (at p 307):
It is common sense and good practice for parties to attempt to resolve their dispute without resorting to litigation if there is a reasonable prospect of success in such an attempt. However, the government’s view, and the view of many practitioners, is that to seek to compel parties to do so through these heavy-handed provisions will simply add to the complexity, expense and delay of bringing legal proceedings, because of the need to comply with these mandatory requirements, whether or not they are likely to be useful in any particular case.
It is regrettable that the legislation was repealed without any evidence base of the effectiveness of the reforms or independent testing of the Attorney’s claims.
It remains to be seen whether the deeds of this new Victorian government match its words. The fact that ADR and access to justice were explicitly part of the policy platform prior to the election is promising. The new Attorney-General, Martin Pakula, has big shoes to fill, his Labor predecessor being Australia’s most reformist AG, Rob Hulls (Lionel Murphy having fewer years in the job).
While we wait to know more from the government in Victoria, here’s my personal wish-list for the Attorney-General to tackle in relation to dispute resolution/ ADR policy reform in Victoria
- A public review of the quality and effectiveness of ADR processes in Victoria. ADR is offered in every Victorian court and by many other state providers. But we know little about the quality of services offered (including settlement rates, satisfaction, inter-professional collaboration around the process and the fairness of outcomes). The Productivity Commission recently called for all State and Territory governments to conduct an independent public review of the effectiveness and efficiency of dispute resolution mechanisms within their jurisdiction every 5 years, starting by 30 June 2016 (p.298). Such a review would be a good start for a government intent on making an impact where there is already significant state outlay on ADR services and efficient justice investment is an imperative.
- Mandating public reporting on standard ADR data by all Victorian ADR service providers (including courts and tribunals, Community Legal Centres, Victoria Legal Aid and other dispute resolution services such as the Dispute Settlement Centre of Victoria, or DSCV). Higher quality and consistent data collection would enable us to understand whether existing ADR services meet their aims and whether gaps in service provision exist. Higher quality data means that money can be efficiently allocated where there is highest need. The public availability of such data is crucial to ensure transparency in provision of dispute resolution services when ADR lacks the many of the fairness protections available in the public court system. The absence of adequate dispute resolution data was noted by the Victorian Law Reform Commission (VLRC) in its 2008 report on Victoria’s civil justice system in relation to the effectiveness of court-ordered mediation in Victoria (at pp 278-83). In 2009, when the Victorian Parliament’s Law Reform Committee recommended that
At a minimum, the Committee believes that there is a need for consistent data collection across ADR service providers about:
-factors that may influence settlement rates, such as referral stage
-what happens when disputes are not settled at ADR
-participant satisfaction with ADR and perceptions of fairness the time and costs expended by participants and service providers. (pp. 58–59)
- Widespread use of family group conferences for child protection matters usually commenced in the Children’s Court of Victoria. In 2010, just prior to the State election in that year, the Victorian Law Reform Commission set out a range of options for reform of the processes followed in child protection cases in the Children’s Court of Victoria. One of the options canvassed involved a graduated range of supported, structured
and child-centred agreement-making processes as the principal means of determining child protection application outcomes instead of existing court processes. The Commission noted that most agreements in child protection matters are already the result of informal bargaining between the parties’ lawyers (at para 7.4) and that supported and child-centered processes such as family group conferences would better enable agreements that are in the best interests of the children involved and which stick in the longer term. These options for reform were never implemented following the 2010 election and may yet help to ensure that scarce resources already invested in Victoria’s child protection system are directed towards assisting vulnerable children have care arrangements that meet their best interests.
- Better connecting and integrating state-funded family violence and police services with federally-funded Family Dispute Resolution (FDR) services so as to better protect those experiencing family violence. In 2010 the Australian and NSW Law Reform Commissions’ joint inquiry into family violence concluded that there was potential for FDR to expeditiously and effectively resolve parenting disputes in cases involving family violence but that there had to be better coordination with State and Territory child protection and family violence systems (at paras 21.12-21.13 and 21.50). The Luke Batty case has clearly demonstrated the need for more effective coordination of state-based family violence and police services and services within the federal family law system. The Victorian government has committed to holding a royal commission into family violence. By committing to work specifically with FDR providers including Family Relationship Centres and Victoria Legal Aid’s Roundtable Dispute Resolution, the Victorian government can help to provide avenues for seamless, safe and supported decision-making following family breakdown for women and children experiencing family violence.
So, that’s my list. What is on your personal wish-list for ADR policy reform in your State or locality?
Becky Batagol would like to disclose that she worked for the Victorian Law Reform Commission on its inquiry into Protection Applications in the Children’s Court of Victoria in 2010.
Thanks Becky – this is a great wish list and I totally agree. The biggest thing on my wish list – and it is for Queensland and the rest of Australia as well as Victoria – is for a coordinated approach to FDR in matters where there is a history of domestic or family violence (such as the CFDR model which was trialled in recent years and which I contributed to designing with Women’s Legal Service in Brisbane) to be resourced for wide implementation. The future of the children who are the subject of these sorts of parenting disputes – and the safety and well-being of parents – warrants this investment of public funds. Yes it is resource intensive but it’s worth it.
I would like to see more support for parents pre- and post-FDR, particularly conflict coaching. Parents are often thrown into FDR without adequate preparation, are rushed through preparing parenting plans that then don’t work, and are not supported post-FDR to implement those plans. I have seen one pilot of pre- and post-FDR conflict coaching work with great success – parenting plans are better, communication is better, and parenting seems to be much more functional in the long term. This sort of support requires resources and time, but I think is well worth it, for parents and children.
Better resources to assist people to effectively resolve disputes on their own or informally would be high on my wish list. On an almost equal footing would be making those who would benefit from access to those resources aware that they exist. The Queensland Law Society has just released its 2014 Access to Justice Scorecard for Queensland http://www.qls.com.au/Knowledge_centre/Access_to_justice/Access_to_Justice_Scorecard. Inability to access legal services as well as lack of awareness of the available services are key barriers to people accessing legal services.
And plannin’ and dreamin’
(never thought Dusty Springfield would provide such helpful lyrics for ADR..)
Thank you Becky for prompting our thinking about what we wish for. My wish list expands my over-arching aspiration that policy reform extends beyond our state borders and becomes a focus for the worldwide ADR community.
There is already an international movement for a new Pound Conference to scrutinise the gap between what we hoped for and what we have. The ‘Shaping the Future of International Dispute Resolution’ conference, in London in October of this year brought users, practitioners, providers and regulators together to scrutinise and vote on the key questions for the international ADR community. The last vote of the day was for an international Pound Conference to be held throughout the world on the same day in October 2015. Preparations are underway and it appears that the day may well commence in Australia first.
So under the umbrella of my aspiration that policy reform engages the global ADR community here is my wish list:
1. More data that is meaningful
You are right Becky – we certainly do need data because decisions based on data bring a strong element of comfort that we might be doing the right thing.
However so much of the data that is collected is quantitative and does not expose the richness and diversity of what we call ADR practice and what it brings to the different constituencies to which it is provided. Protocols for the collection of qualitative data are very difficult to devise and even more difficult to implement. Professor Kathy Mack described that well in her 2003 report. Of the qualitative research she did complete, her finding that the settlement rates in voluntary and court-ordered mediations are similar has been very useful and the rest of her research is ripe for an update.
Professor Guiseppe De Palo, (academic, policy advisor and practising international mediator) and his team presented the ‘Rebooting the Mediation Directive’ report to the European Parliament recently at its request. The work involved useful qualitative data collection about mediation in the EU. One particularly compelling piece of evidence demonstrated that commercial mediations which do not settle and proceed to litigation still cost less and involve fewer days in court than disputes which proceed directly to court without mediation. We need more data like this. LEADR presented this as part of its submission to the Productivity Commission but we need the power of local data. There is a lot of anecdotal evidence about other benefits which flow from mediations that do not settle – we need hard data including reviewing and updating Professor Kathy Mack’s work.
2. Putting the client in the frame
Membership and training organisations such as LEADR and IMI collect a lot of data about client satisfaction levels for the purposes of national and international accreditation. This is useful information. However, since lawyers are the ‘wholesalers of disputes’ most of this data reflects the lawyers’ experience. We still know far too little about the parties’ experience and whether there are changes which are identifiable in the quality of the experience and the parties’ understanding of what ADR is before they enter ADR processes.
3. ‘Out of the box’ thinking
The constituency concerned with ADR policy reform is diverse. In particular, the providers and their members have many different labels which operate to separate the voices – ‘commercial’, ‘family’ ‘not for profit’ for example. Putting our wish lists together will enhance the drive for policy reform and mark this as an industry wide initiative.
Thank you Becky for prompting this discussion. It has certainly helped me to clarify my wishes and objectives.
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If we are thinking of wish lists I would like to add a wish for improved mediation practice in Victoria. Not that there are not many thoughtful and highly skilled mediators operating in Melbourne but rather that sometimes the original aims of mediation can be forgotten. Are we careful to give “voice” to parties in mediation? Are we so concerned with settlement that we may forget the experience of mediation for parties?
My wish list includes a hope that the idea of procedural justice would permeate our construction of mediation practice. If our mediation frame of practice includes procedural justice, where the experience of the process for parties is informed by the need to give voice to parties, validating their conflict experience and improving outcomes, I think that mediation as a ADR option would be much more effective in our justice system.