MEDIATION AS A PROGRESSIVE ROUTE

MEDIATION AS A PROGRESSIVE ROUTE – LESSONS TO BE LEARNED FROM THE SOUTHERN HEMISPHERE

In Europe, mediation has been more and more at the center of attention in the past few years. In 2002, the EU launched the Green Paper followed by a Code of Conduct for Mediators. In April 2007, it funded the project “Alternative Dispute Resolution – Experiences in Italy, Spain and France”, which highlights the importance and value of mediation as an alternative to the conventional dispute resolution and emphasises the EU’s commitment to actively supporting and promoting its use in all its member states.

In Ireland, the Law Reform Commission is currently examining possible legal changes to facilitate the use of alternative methods of dispute resolution. In the present economic circumstances, a faster and more economic form of resolving conflict could become a preferred option for many.

Looking at the experience prevalent in the Southern hemisphere, the question arises whether there are lessons to be learned from these jurisdictions. In Australia, mediation has been a standard way of procedure for a very long time, and recourse to it sometimes mandated by law before legal action can be taken. This has, among other things, resulted in a considerable alleviation of the load on the legal system and in significant saving of finacial resources. ADR goes as far back as being included in the Federal Constitution. It has been an integral and important part of resolving disputes throughout the 20th century and it has been expanded and integrated in the law since then.

Through several pilot projects, such as the Community Justice Centres Act of 1980, the founding of the Australian Commercial Disputes Centre in the mid-1980s and the private practitioner’s network Lawyers Engaged in ADR (LEADR) in 1989, mediation was gradually introduced into the different legal areas.
Before that, the Family Law Act of 1975 had made mediation compulsory where it would be in the best interest of the parties or of the children.

The courts have played a key role in this development. In 1976, the Federal Court of Australia Act ordered a proceeding to mediation with or without the consent of the parties. The Courts Mediation and Arbitration Act of 1991 facilitated court-sponsored mediation and arbitration in the Federal and Family Courts. In 1992, the Supreme Court of the State of Victoria initiated the so-called “Spring Offensive”, in order to reduce caseload. 250 cases were referred to mediation before senior legal practitioners. This brought ADR to the attention of lawyers and judges. In a press release dated 6 April 1998, Daryl Williams, Attorney-General for Australia, said:

“The government firmly believes that mediation and alternative dispute resolution should be the norm rather than the exception.”

In the course of the development of ADR in Australia, it soon became evident that there was a need for an independent national advisory body for the Government, federal courts and tribunals on ADR issues with a view to achieving and maintaining a high quality, accessible and integrated ADR system. This lead to the establishment, in October 1995, of the National Alternative Dispute Resolution Advisory Council (NADRAC), a non-statutory body, funded by the Australian Government Attorney General’s Department. The NADRAC is also responsible for promoting the use and raising the profile of ADR.

In recent years efforts have been undertaken to make the different accrediting bodies comply with a uniform accreditation system which would then enable them to be part of the Recognised Mediation Accreditation Bodies (RMABs). Since July 2007, in order to be listed at the NADRAC as an RMAB, accreditators have had to meet the standards of the new National Mediator Accreditation System which will be fully implemented in July 2009.

In Family Law, several changes in relation to dispute resolution provisions of the Family Law Act 1975 have been introduced since 2007. All legislation references to mediation and mediators have been replaced by Family Dispute Resolution and FDR Practitioners. From July 2008, Family Dispute Resolution is a requirement before being able to apply to the court for a Parenting Order. This includes new applications as well as applications seeking changes to the existing Parenting Order.
The Australian Government also provides funding for Family Relationship Centres which offer a Family Dispute Resolution service. Some are also provided by the Church and other charitable entities. The uniform use of mediation in this area has resulted in a wide community awareness of the process and its advantages.

In response to the rising number of family provision proceedings and the disproportionate cost relative to the size of the estate, the Succession Amendment (Family Provision) Bill 2008 reflects the Government’s aim to have family provision matters settled before hearing where possible. The Court is required to refer all matters to mediation before making an order, with exception of cases where certain circumstances (threat of violence, imbalance of power between parties) make mediation a non-viable option.

The role of professional organisations has also been key to the success of ADR in Australia. Two of the main players are the Institute of Arbitrators & Mediators Australia (IAMA) and the previously mentioned LEADR (now Leading Edge ADR). They are both long established and well regarded organisations and RMABs. They are major mediation trainers and provide continuing education and information through organising numerous conferences and publishing regular newsletters.