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					                          CHAPTER 5: RESOLVING DISPUTES AT THE
                              LOWEST APPROPRIATE LEVEL

RESOLVING DISPUTES AT THE LOWEST APPROPRIATE LEVEL .............................................................. 128
Cultural and behavioural change ..................................................................................................................................... 128
       The adversarial approach to dispute resolution .................................................................................................... 128
           Reducing litigiousness ................................................................................................................................... 129
            Attitudinal change ........................................................................................................................................ 129
            Professional obligations ............................................................................................................................... 130
           Collaborative law ........................................................................................................................................... 130
Resolving disputes at the lowest appropriate level through ADR ................................................................................... 131
       What is ADR? ...................................................................................................................................................... 131
       Philosophy of ADR .............................................................................................................................................. 132
       Proportionality ..................................................................................................................................................... 133
       Appropriate use of ADR ...................................................................................................................................... 133
       Quality of ADR providers.................................................................................................................................... 134
       Cultural factors .................................................................................................................................................... 135
           Indigenous Australians ................................................................................................................................... 135
Means of encouraging the early consideration of ADR .................................................................................................. 137
       Professional obligations to advise about ADR .................................................................................................... 137
       The Commonwealth as a litigant ......................................................................................................................... 138
       Industry-based dispute resolution schemes .......................................................................................................... 140
Pre-action procedures ...................................................................................................................................................... 141
       Pre-action protocols in the United Kingdom ....................................................................................................... 141
       Pre-lodgement procedures in South Australia and Queensland ........................................................................... 142
       Use of pre-action procedures in federal courts .................................................................................................... 143
       General pre-action protocols ................................................................................................................................ 143
Use of ADR during general federal law proceedings ...................................................................................................... 145
       ADR in the federal courts .................................................................................................................................... 145
       Referral to ADR: Consensual or non-consensual ................................................................................................ 148
       Court-annexed ADR ............................................................................................................................................ 149
       Judicial conduct of ADR...................................................................................................................................... 149
       Case evaluation .................................................................................................................................................... 151
Primary dispute resolution in family law disputes .......................................................................................................... 153
       Litigation as a last resort ...................................................................................................................................... 154
       Family Law Pathways report ............................................................................................................................... 155
       Pre-filing PDR ..................................................................................................................................................... 155
       Legal aid commissions and PDR ......................................................................................................................... 156
       PDR during proceedings ...................................................................................................................................... 158
       Child-focused practice initiatives ........................................................................................................................ 159
       Post-order PDR .................................................................................................................................................... 160
       Better coordination of PDR services.................................................................................................................... 161
Conclusion ...................................................................................................................................................................... 163




                                                                                                                                                                              127
                    RESOLVING DISPUTES AT THE LOWEST
                           APPROPRIATE LEVEL

A major challenge for the federal civil justice system is to prevent disputes that fall within areas of
federal jurisdiction from escalating wherever possible, in an attempt to reduce the financial and
other costs to both individual disputants and the federal civil justice system more broadly.

Clearly, a percentage of cases will continue to be resolved, and need to be resolved, by judicial
determination. However, most disputes can be, and often are, resolved using other means. This
Chapter considers ways to proactively avoid the escalation of disputes and the need for there to be a
broad range of dispute resolution methods to encourage the resolution of disputes at the lowest
appropriate level, focusing on the use of alternative dispute resolution (ADR).

Other elements of resolving disputes at the lowest appropriate level are ensuring that disputes that
are litigated are dealt with in the most appropriate court, using procedures that are suitable for the
nature of the dispute at hand. This was one of the principles behind the Government’s decision to
establish the Federal Magistrates Court, discussed further in Chapter 7. Such principles must also
drive courts’ case management systems, which are discussed in Chapter 6.


CULTURAL AND BEHAVIOURAL CHANGE

The adversarial approach to dispute resolution
As Chapter 2 of this paper shows, since the 1970s, the federal courts have grown and been granted a
greater range of jurisdiction, litigation has become more complex and new areas of the law, such as
native title, have created new and unforeseen challenges for the system.1 The question now is
whether the traditional adversarial attitude towards dispute resolution is still appropriate in the
twenty-first century, in a system moving towards greater use of alternative dispute resolution
(ADR) and greater control over proceedings by courts.

It is not intended here to rehearse the arguments for and against particular adversarial versus
inquisitorial systems. The ALRC’s Managing Justice report noted that ‘the debate on changing
adversarial culture or processes is clouded by definitional questions’ as the terms ‘adversarial’ and
inquisitorial’ have no precise meaning.2 Indeed, the Australian court system over the years has
adopted many processes and procedures traditionally associated with the European ‘inquisitorial’
systems, such as case management, court connected ADR processes and discretionary rules of
evidence and procedure.

Nevertheless, the adversarial style of litigation has been criticised for encouraging a more general
adversarial culture where the litigation process is seen as a ‘battlefield where no rules apply’.3
Concerns are also frequently expressed about the increasingly litigious attitudes in the wider


1
  Australian Law Reform Commission, Managing Justice: a review of the federal civil justice system, Report No. 89,
    2000 at para 1.153.
2
  Para 1.116.
3
  Lord Woolf, Access to Justice (Interim Report) July 1996, para 4, viewed August 2003, at
    <http://www.lcd.gov.uk/civil/interim/chap3.htm>.



                                                                                                                 128
community.4 While Chapter 6 discusses issues surrounding case management, the focus here is on
the need to change the adversarial mindset.

Reducing litigiousness
Shifting cultural attitudes away from a combative way of thinking and towards a more conciliatory
approach to dispute resolution is a crucial part of encouraging the resolution of disputes at the
lowest appropriate level. The Prime Minister has expressed the view that Australians need to
‘change many of our attitudes towards what we expect when misadventure strikes’ in order to
‘avoid going down the American path of becoming too litigious’.5 The Honourable Justice Kenneth
Hayne AC has described litigiousness as ‘an eagerness to go to law or even a fondness for the
process’.6

Much of the discussion surrounding increasing litigiousness centres on negligently inflicted
personal injury, an area of law which largely falls outside federal jurisdiction.7 However, the
general principle that looking for someone to blame and issuing proceedings should not being the
first option when misfortune arises is equally relevant to the federal civil justice system. His
Honour Justice Hayne has also articulated that ‘restricting litigation, or at least limiting the amount
of contested litigation, must be one of the fundamental aims of any developed legal system.’8 This
does not imply that people should necessarily be discouraged from pursuing their rights. Rather, it
means that people should reflect carefully about whether they wish to escalate an existing situation
that may result in litigation, and consider the most cost effective, timely and least stressful way of
resolving that situation.

The strain on the system caused by a traditional adversarial approach to dispute resolution may
possibly be alleviated in several ways.

Attitudinal change

The inclination to view the other party as an enemy needs to be reduced. Less focus should be
placed on winning and losing, and more on achieving an agreed and effective resolution which will
lessen the chance of the dispute being brought back into the justice system by a disgruntled party. 9
Substantial reform cannot be achieved until both lawyers and disputants acknowledge that ‘a
solution reached by the application of legal principles to the facts found may not be in the best
interests of either party to a dispute and that there may be another solution which will better
advance those interests’.10 This approach places emphasis on the importance of individuals taking
more responsibility for their situation, instead of pursuing their right to a civil remedy as a first
option.

4
  For example, The Hon. John Howard PM, ‘Address to the Council of Small Business Organisations of Australia, 29
    May 2002, viewed August 2003 at <http://www.pm.gov.au/news/speeches/2002/speech1670.htm>; Australian
    Chamber of Commerce and Industry, Public Liability Insurance, Submission to Department of Treasury, March
    2002, p 3.
5
  See J Howard above.
6
  The Hon Justice K Hayne AC, ‘Restricting litigiousness’, speech delivered at the 13 th Commonwealth Law
    Conference, 14 April 2003, viewed August 2003 at <http://www.hcourt.gov.au/speeches/haynej/haynej_
    Restrictinglitigiousness.htm>.
7
  There has been much debate about whether there has actually been a substantive increase in the volume of personal
    injury litigation, a matter which is outside the scope of this paper to consider.
8
  See Hayne above.
9
  The Hon Justice G Davies, ‘Fairness in a predominantly adversarial system’ (1997) 71 Spring Reform 47, at p 48.
10
   See Davies above, at p 49.



                                                                                                                  129
Professional obligations

Lawyers have a responsibility to maximise the chances of their clients’ disputes being resolved in a
manner that is not only realistic in terms of the outcome, but also cost effective. Many lawyers
already play an important role in guiding their clients towards a satisfactory settlement of disputes
that might otherwise result in litigation. However, it cannot yet be said that this is the case across
the board. Lawyers’ professional obligations to promote the early resolution of disputes are
discussed further below.

Collaborative law
Collaborative law is one example of a method designed to reduce the adversarial nature of dispute
resolution, which appears to have achieved some success in the family law context in Canada and
the United States of America.11 This system of resolving family law disputes evolved from the
recognition that ‘some litigation, like nuclear war, is unwinnable’, as well as a response to the
increasing costs, both financial and emotional, of family law litigation.12

The collaborative family law system centres on a fundamental rule that lawyers and clients must
agree to work only towards a settlement. If legal proceedings are subsequently filed then the
collaborative lawyers must withdraw and the clients must obtain new representation for the court
proceedings.13 The system relies on the personal honour and integrity of lawyers who choose to
practice collaborative law since all documents and information are produced voluntarily without the
benefit of the formal disclosure requirements associated with court procedures.14

When attempting to resolve a dispute collaboratively, parties and their lawyers will sign a
‘participation agreement’ which is a written commitment not to lodge proceedings, or to threaten to
lodge proceedings. The agreement is a pledge to ‘cooperate in a good faith effort to appraise and
resolve the dispute fairly, and to voluntarily disclose relevant information’.15

Collaborative law is said not only to provide an alternative to traditional litigation but also a
different approach to negotiation, mediation and settlement. Out-of-court negotiations in family
law matters can easily be influenced by adversarial attitudes due to the highly emotional context of
the dispute and the entrenched positions of the parties. Collaborative law encourages the parties to
communicate more effectively to arrive at a mutually acceptable long term solution which will not
polarise the parties even further.16

There has been a proliferation of collaborative law centres, institutes and practices in Canada and
the United States of America since the establishment of the collaborative law system17 but, as yet,


11
   Huddart J, Revolutionary approach winning converts across Canada, Toronto, 2003, viewed July 2003, at
    <http://www.collaborativefamilylawassociation.com/Update%20PFA%20JHuddart.htm>.
12
   Collaborative Law Centre, Why collaborative law?, Cincinnati, 2000, viewed August 2003, at
    <http://www.collaborativelaw.com/Documents/Why%20collaborative%20law.doc >.
13
   MacDonald J, Collaborative Family Law, paper delivered at the National Program on Family Law, 15-18 July 2002,
    viewed August 2003, at <http://www.collaborativefamilylawassociation.com/FA%20JMacDonald.htm>.
14
   See MacDonald above.
15
   See Collaborative Law Centre above.
16
   See Huddart above.
17
   For example: Collaborative Law Center, Ohio (<http://www.collaborativelaw.com/>), Collaborative Law Network,
    California (<http://www.collaborative-law.ca/> ), Collaborative Law Alliance, New Hampshire
    (<http://www.collaborativelawnh.org/>), Collaborative Family Lawyers of Canada,



                                                                                                              130
the process has not been adopted in Australia. The process of collaborative law is currently being
explored by a group of lawyers in Queensland. The Government encourages lawyers’ moves
towards the adoption of such less adversarial approaches to dispute resolution. If there is to be a
change of culture in this direction, it must largely be driven from within the legal profession.

RESOLVING DISPUTES AT THE LOWEST APPROPRIATE LEVEL
THROUGH ADR

What is ADR?
ADR has become recognisable as a brand name for all dispute resolution methods excluding
judicial determination. However, ADR methods should not be viewed as ‘alternative’, especially in
the family law context, since they are now accepted as mainstream dispute resolution processes.18
ADR has been defined by NADRAC as ‘processes, other than judicial determination, in which an
impartial person assists those in a dispute to resolve the issues between them.’ As such, ADR
processes may be either facilitative, advisory or determinative, or a combination of one or more of
these processes.19

The difference between the various processes is the role of the ADR practitioner in the resolution of
the dispute. In a facilitative process, such as mediation, the ADR practitioner will assist the
disputants to identify the disputed issues, develop options, consider alternatives and attempt to
reach an agreement on some or all of the issues in dispute. In advisory processes, such as expert
appraisal and early neutral evaluation, the ADR practitioner will consider and appraise the dispute
and provide advice on the facts, law and possible outcomes of the dispute. However, in a
determinative process, such as arbitration, the ADR practitioner will evaluate the dispute, which
may include hearing formal evidence from the parties, and make a potentially enforceable
determination.20

The term ‘mediation’ is commonly used in the legislation associated with the federal civil justice
system, although is not uniformly defined. Potential confusion regarding terminology is
exacerbated by the Family Court’s practice of referring to all ADR methods, excluding arbitration,
as mediation. The inconsistency in the usage of ADR terms prompted NADRAC to release a
discussion paper in June 2002 on ADR terminology and to consider strategies for dealing with this
issue in the future.21 Subsequently, in September 2003, NADRAC released a paper entitled
‘Dispute Resolution Terms’,22 which contains a glossary of common terms, aimed at encouraging
greater consistency in the use and understanding of ADR terminology.




    (<http://www.collaborativelaw.ca/default.htm >) and Collaborative Family Law Group, British Columbia
    (<http://www.nocourt.net/>).
18
   The Family Law Act 1975 uses the term primary dispute resolution, or PDR, to promote ADR methods as a first
    option and litigation as a last resort.
19
   NADRAC, What is ADR?, viewed September 2003, at <http://www.ag.gov.au/www/rwpattach.nsf
    /viewasattachmentPersonal/3356EA8F9B325450CA256B84000C547A/$file/flyer.doc>.
20
   See NADRAC, What is ADR?, above.
21
   NADRAC, ADR Terminology, viewed August 2003, at <http://www.ag.gov.au/www/disputeresolutionHome.nsf/
    HeadingPagesDisplay/Definitions2?OpenDocument>.
22
   NADRAC, Dispute Resolution Terms, September 2003, viewed October 2003, at <http://www.ag.gov.au/www
    /disputeresolutionhome.nsf/Web+Pages/A5559F45254849B3CA256D9F002714A9?OpenDocument>.



                                                                                                                 131
Philosophy of ADR
Research suggests that the majority of civil disputes that arise are already resolved outside the
formal court system.23 Additionally, it has long been a feature of litigation that relatively few
proceedings are resolved through a final hearing. Most proceedings will settle at some stage along
the path to hearing. Only 4% of Family Court first instance proceedings result in a final hearing,24
compared with 22% of Federal Court first instance proceedings.25 The challenge is to ensure that
disputes which are capable of being resolved outside the court system altogether are so resolved,
and that, for disputes that do result in proceedings, those proceedings that are likely to settle do so
as early as possible, in order to minimise the costs to the litigants and the courts.

Some cases will inevitably require a judicial resolution either because of the nature of the
proceedings or the disputants. Indeed, it is essential for the integrity of the judicial system that a
proportion of cases are resolved by judicial determination, or the normative value of judicial
decisions in interpreting legislation and ensuring the evolution of the common law would be
diminished.

In recent times, the federal civil justice system has increasingly made use of ADR as a means of
attempting to address the challenges of expense and delay associated with litigation. In some
circumstances, ADR can provide a more expedient and cost effective method of resolving a dispute.
Part of the philosophy behind the promotion of ADR as an alternative to traditional litigation is that
resolving disputes as early as possible without the need to resort to litigation is less stressful for
litigants.

ADR, although not appropriate for all disputes, can offer many benefits to participants, including a
less intimidating process which allows the parties greater control over the outcome and the ability to
express their interests without jeopardising ongoing relationships.26 Participants who take part in
ADR generally report quite high levels of satisfaction with the process.27 The desirability of
maintaining relationships between parties is especially relevant in family law proceedings. ADR in
family law matters is discussed in further detail later in this Chapter.

The Government’s support of the National Alternative Dispute Resolution Advisory Council
(NADRAC) emphasises the importance placed by it on ADR. NADRAC is an independent body
with the function of providing legal and policy advice to the Attorney-General on a range of matters
related to the resolution of disputes without the need for a judicial decision.28




23
   See Wain S, ‘Public Perceptions of the Civil Justice System’ in Ontario Law Reform Commission, Rethinking Civil
    Justice: Research Studies for the Civil Justice Review, 1996, pp 39-76; Bottomley S and Parker S, Law in Context
    (second edition), 1997, chapter 5.
24
   Family Court of Australia, Submission to the House of Representatives Standing Committee on Family and
    Community Services, Inquiry into child custody arrangements in the event of family separation, p 13, viewed
    October 2003, at <http://www.aph.gov.au/house/committee/fca/childcustody/subs/sub0751.pdf>.
25
   Source: information provided by the Federal Court of Australia.
26
   Australian Law Reform Commission, ADR – its role in federal dispute resolution, Issues Paper No. 25, June 1998,
    para 2.9.
27
   NADRAC, ADR research: Background paper for research round table, para 27, viewed September 2003, at
    <http://www.ag.gov.au/www/rwpattach.nsf/viewasattachmentPersonal/E514E9BD95687B21CA256CFD00136D9E
    /$file/02%20Feb%20Research%20paper.doc>.
28
   For details of NADRAC’s work see <http://agnet.ag.gov.au/www/disputeresolutionHome.nsf>, viewed November
    2003.



                                                                                                                132
Proportionality
One of the principles of dispute resolution generally is that the means of resolving a dispute should
be proportionate to the nature of the dispute in terms of its value, complexity and importance to the
disputants and the public more broadly. The Woolf inquiry in the United Kingdom explored the
issue of disproportionate costs and found that, especially in smaller claims, the costs of litigation
often exceeded the value of the claim.29 Research undertaken by the ALRC showed that this
problem is not as acute in Australia and, in fact, that in many cases the costs of litigation cannot be
classified as excessive either by reference to the amount in dispute or in absolute terms.30

However, the ALRC has also recognised that an adversarial approach to dispute resolution
predisposes parties to litigate rather than settle disputes, which can consequently increase the public
and private costs of litigation.31 The use of ADR is one way of enabling resolution of a dispute that
is proportionate to the nature of the dispute.

Appropriate use of ADR
It is agreed that ADR should not be seen as a universal panacea, capable of curing the twin ills of
cost and delay that seem to bedevil every litigation system to some extent. However, generally,
ADR has been presented in Australian courts and tribunals, not as a replacement for litigation, but
rather as ‘a bonus, an additional facility, supplementing adjudication.’32

The timing of a referral to ADR may be critical in maximising the chances of the success of the
process. As the Managing Justice report indicated, there is not a universally optimal time to refer
disputes to ADR, and early referral is not necessarily better as the parties may not yet be ready to
settle and the dispute not yet ‘ripe’ for resolution.33 Hence, ADR can increase costs by adding
another layer to the dispute resolution process when used indiscriminately.34

Parties who refer disputes to ADR need to be able to assess whether the referral will be appropriate.
This may necessitate experience of the jurisdiction and its case characteristics, knowledge of the
different dispute resolution processes, good judgment and a clear understanding of the strengths and
weaknesses of the different dispute resolution methods.35 Concerns have previously been raised
about the capacity of the courts to make wise referral decisions.36 The Australian Institute of
Judicial Administration and NADRAC are in the process of developing an issues paper regarding

29
   Woolf, Access to Justice (Interim Report), June 1995, para 18 viewed August 2003, at <http://www.lcd.gov.United
    Kingdom/civil/interim/chap3.htm>.
30
   Australian Law Reform Commission, Review of the federal civil justice system, Discussion Paper No. 62, 1999, paras
    4.52-4.63.
31
   Australian Law Reform Commission, ADR – its role in federal dispute resolution, Issues Paper No. 25, June 1998,
    para 2.9.
32
   See Australian Law Reform Commission, Managing Justice: a review of the federal civil justice system, Report No.
    89, 2000, para 12.39.
33
   The concept of the ‘ripeness’ of a case for resolution is discussed in Astor H and Chinkin C, Dispute Resolution in
    Australia, 2002 at p 280. See also Australian Law Reform Commission, ADR – its role in federal dispute
    resolution, Issues Paper No. 25, June 1998, para 6.64.
34
   See Australian Law Reform Commission, ADR – its role in federal dispute resolution, Issues Paper No. 25, June
    1998, para 2.68.
35
   Astor A, Quality in court connected mediation programs: an issues paper, Australian Institute of Judicial
    Administration, 2001, p 32.
36
   See Australian Law Reform Commission, ADR – its role in federal dispute resolution, Issues Paper No. 25, June
    1998, para 5.57.



                                                                                                                  133
court referral to ADR, which will discuss ADR research and the feasibility of developing criteria for
courts to use when making referrals.

The appropriate referral of disputes to ADR may also contribute to the efficiency of the civil justice
system as a whole. If disputes amenable to resolution by ADR methods can be referred to
appropriate service providers, it is more likely that these disputes will be settled outside of the court
system. This will, in turn, increase the likelihood that parties and their legal representatives will
seek to use ADR methods in the future, and may lessen the pressure on the system by reducing the
number of proceedings filed.37

The use of ADR may also make the federal civil justice system more accessible by providing a
broad range of informal dispute-resolution methods which may be more suitable and cost effective
as a method of resolving the dispute than formal litigation.38 Courts can be intimidating places for
disputants with no legal training, especially those who are self-represented, and ADR processes are
capable of reducing the pressure and stress on disputants.39

However, it is important that self-represented litigants understand the relevant ADR process, as well
as the alternatives, and are not pressured into settlements without understanding their right to a
judicial determination of the dispute. Furthermore, although ADR is capable of redressing some
power imbalances between disputants, these imbalances will only be heightened if one party is
forced to participate in ADR because, for example, of a financial incapacity to litigate the matter or
a lack of bargaining power.40

Quality of ADR providers
The chances of ADR achieving a positive outcome may be enhanced if attention is devoted to
ensuring that ADR practitioners are properly trained and qualified, since this may increase both the
confidence of lawyers and disputants in the effectiveness of ADR, and the likelihood that the parties
will be satisfied with the outcome of the ADR process.41

There has been much discussion in recent years about whether ADR practitioners should be subject
to performance and competency standards, and what level of training should be required before a
person can qualify as an ADR practitioner. Many organisations in Australia have considered the
issue of standards for mediators, including NADRAC,42 the Law Council of Australia,43 and the


37
   See Astor A, Quality in court connected mediation programs: an issues paper, Australian Institute of Judicial
    Administration, 2001, p 29.
38
   Australian Law Reform Commission, Review of the federal civil justice system, Discussion Paper No. 62, 1999, paras
    2.2-2.3.
39
   See Astor H and Chinkin C, Dispute Resolution in Australia, 2002, p 62.
40
   For examples, see Australian Law Reform Commission, Review of the federal civil justice system, Discussion Paper
    No. 62, 1999, para 9.36.
41
   Research conducted in the United Kingdom indicates, unsurprisingly, that clients are more satisfied with an ADR
    process when it is successful in achieving a settlement. However, the research also showed that mediating parties
    must have respect for the authority of the ADR practitioner to feel confident about the process, which demonstrates
    the need for ADR to be conducted by practitioners with expertise in the subject matter of the dispute, Genn H,
    Court-based initiatives for non-family civil disputes: The Commercial Court and the Court of Appeal, Lord
    Chancellor’s Department Research Secretariat, March 2002.
42
   A Framework for ADR Standards, April 2001, viewed September 2003, at <http://www.ag.gov.au/
    www/disputeresolutionHome.nsf/Web+Pages/6F10B734577A902DCA256B4C00030D1E?OpenDocument>.
43
   Ethical Standards for Mediators, February 2000, viewed September 2003, at
    <http://www.lawcouncil.asn.au/get/policies/1957353025/0>.



                                                                                                                   134
New South Wales Law Reform Commission.44 NADRAC recommended that all ADR service
providers adopt, and comply with, an appropriate code of practice.45 A challenge in developing and
enforcing such standards would be the need for a body to coordinate and enforce the
implementation of such standards. NADRAC sees the role of government in this area as ‘providing
support and encouragement for the formation of a peak body, rather than taking the initiative to
form one’.46

There are already some quality control standards in place for family law ADR (PDR) providers.
Community organisations that are funded by the Government under the Family Relationships
Services Program are currently subject to quality standards through their contracts. The
Attorney-General’s Department has commissioned a team at La Trobe university to undertake a
broader quality framework project, to attempt to address some quality and accreditation issues
related to the provision of PDR services. A quality framework would ideally enable PDR
practitioners who meet the requirements to voluntarily be ‘badged’ as qualified to undertake PDR
work under the Family Law Act 1975.47

Cultural factors
The need to tailor ADR processes to individual disputes and litigants is particularly apparent where
there are cultural issues to be considered.48 In 1999, NADRAC published a brochure entitled ‘A
Fair Say’, which is designed to provide a guide for managing differences between participants in
ADR processes, including culture, gender, age and power imbalances.49

One benefit of ADR is that it can enable people of diverse backgrounds to resolve disputes in a way
that is comfortable for them, allowing the adoption of culturally sensitive processes and practices
which are not ‘fettered by the substantive, procedural and evidentiary rules of the formal civil
justice system.’50 The flexibility of ADR processes allows the participants to control the
parameters, processes and outcomes of the dispute and its resolution, which may be a very
empowering experience for disputants from minority groups.51

Indigenous Australians
Indigenous Australians face particular challenges when dealing with the civil justice system due in
part to complex differences in the rules, obligations, expectations and experiences between


44
   Training and Accreditation of Mediators, Report 67, 1991, viewed September 2003, at
    <http://www.lawlink.nsw.gov.au/lrc.nsf/pages/R67TOC>.
45
   NADRAC, A Framework for ADR Standards, April 2001, p 97, viewed September 2003, at
    <http://www.ag.gov.au/www/disputeresolutionHome.nsf/Web+Pages/6F10B734577A902DCA256B4C00030D1E?
    OpenDocument>.
46
   NADRAC, A Framework for ADR Standards, above, para 4.66.
47
   Pidgeon S, Attorney-General’s Department, Hansard, House of Representatives Standing Committee on Family and
    Community Affairs, Inquiry into joint custody arrangements in the event of family separation, Canberra, 15
    September 2003, p 21, viewed October 2003, at <http://www.aph.gov.au/hansard/reps/commttee/R6967.pdf>.
48
   NADRAC, Issues of Fairness and Justice in Alternative Dispute Resolution, Discussion Paper, 1997, viewed August
    2003, at <http://www.ag.gov.au/www/disputeresolutionhome.nsf/Web+Pages/043D3288
    E4FE074CCA256B4C000BD025?OpenDocument>.
49
   NADRAC, A Fair Say, brochure, 1999, viewed October 2003, at <http://www.ag.gov.au/www/
    disputeresolutionhome.nsf/Web+Pages/25DAF39459E85E7ECA256B4C00095F26?OpenDocument>.
50
   See NADRAC above, Issues of Fairness and Justice in Alternative Dispute Resolution, para 4.25.
51
   See NADRAC above, Issues of Fairness and Justice in Alternative Dispute Resolution, paras 4.27 and 4.28.



                                                                                                               135
Indigenous communities and between such communities and the culture and aims of the formal
justice system.52

The significance of cultural issues in disputes involving Indigenous Australians is particularly
relevant to the resolution of native title disputes. Under the Native Title Act 1993, native title
applications are filed in the Federal Court which, once all the parties are identified, may refer the
application to the National Native Title Tribunal for mandatory mediation.53 The framework of the
Native Title Act 1993 is designed to promote mediation as a preferred alternative to litigation, since
it is considered that a mediated outcome is more likely to provide a less expensive, complete
resolution of the issues and develop a more comprehensive, flexible, enduring and practical solution
than may be possible through litigation.

Indigenous Land Use Agreements also facilitate agreement outside of the formal court processes by
allowing a broad and flexible scope for negotiations about native title related matters.54 They can
offer a practical, quicker and more cost effective means of resolving competing land uses in the
native title context and engage stakeholders in a positive dialogue, which may lay the groundwork
for positive and productive future relationships.55

Concerns have been expressed that the mediation process in general, and the National Native Title
Tribunal mediation process in particular, may create a power imbalance which could disadvantage
Indigenous Australians.56 This power imbalance may also be exacerbated by the existence of
cultural differences between the parties. These cultural differences were highlighted in the
NADRAC paper Issues of Fairness and Justice57 and the Tribunal has since implemented measures
to deal with problems arising from them.58

Some of the measures implemented by the Tribunal to minimise any disadvantage suffered by
Indigenous parties in mediation include placing an emphasis on providing community education to
increase community knowledge of the processes and procedures of the Tribunal, recognising the
need for flexibility in applying conventional mediation processes, enabling the mediation
proceedings to be conducted informally and recognising the existence of internal conflicts in
Indigenous communities and the effect this may have on the mediation.59



52
   See NADRAC, Issues of Fairness and Justice in Alternative Dispute Resolution, para 4.59.
53
   Subsection 86B(1) Native Title Act 1993.
54
   National Native Title Tribunal, Annual Report 2001-02, p 43.
55
   Joint Parliamentary Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, Nineteenth
    Report: Second Interim Report for the s 206(d) Inquiry – Indigenous Land Use Agreements, 2001, paras 8.8 and
    8.15, viewed October 2003, at <http://www.aph.gov.au/senate/committee/ntlf_ctte/report_19/report/contents.htm>.
    As at 17 November 2003, there were 100 registered ILUAs in Australia: Attorney-General’s press release, 17
    November 2003, 100th indigenous land use agreement underlines success of native title reforms, viewed November
    2003, at <http://agnet.ag.gov.au/www/MinisterRuddockHome.nsf/HeadingPagesDisplay/Media+Releases?
    OpenDocument>.
56
   Dodson M, ‘Power and cultural difference in native title mediation’ (1996) September 3(84) Aboriginal Law Bulletin
    8; Neate G, ‘Reconciliation on the ground: Meeting the challenges of native title mediation’, paper delivered at the
    Asia Pacific Mediation Forum, 1 December 2001, viewed September 2003, at
    <http://www.nntt.gov.au/metacard/files/Reconciliation_ground/Asia_Pacific_Mediation_Forum.pdf>.
57
   See NADRAC, Issues of Fairness and Justice In Alternative Dispute Resolution, para 4.69.
58
   Australian Law Reform Commission, ADR – its role in federal dispute resolution, Issues Paper No. 25, June 1998,
    para 4.74.
59
   Australian Law Reform Commission, ADR – its role in federal dispute resolution, Issues Paper No. 25, June 1998,
    para 4.74. For more details on how the Tribunal’s mediation process operates, see <www.nntt.gov.au>.



                                                                                                                    136
To better understand the needs of Indigenous Australians involved in ADR processes, NADRAC is
conducting a series of consultative forums in order to learn about ADR practices in Indigenous
communities and to work towards developing future strategies to improve the delivery of ADR
services to Indigenous people.60 It is also working closely with the Australian Institute of
Aboriginal and Torres Strait Islander Studies which is conducting a project on agreement-making
and dispute management in Indigenous communities.


MEANS OF ENCOURAGING THE EARLY CONSIDERATION OF ADR
It is valuable to consider ways in which parties can be encouraged to resolve disputes prior to
coming into contact with a court. Some possible mechanisms for encouraging the resolution of
disputes before litigation include the availability of industry dispute resolution schemes and the
legal obligations and professional conduct rules encouraging or requiring lawyers to advise clients
of the ADR processes available to them. Given the Commonwealth’s role as a major litigant in the
federal civil justice system, the use of ADR by the Commonwealth is also discussed below.

Professional obligations to advise about ADR
The Family Law Act requires a legal practitioner acting in a family law dispute and a court
exercising jurisdiction under the Act to ‘consider whether or not to advise the parties to the
proceedings…about the primary dispute resolution methods that could be used to resolve any matter
in dispute’.61 Similar provisions are contained in the Federal Magistrates Act 1999, with the
additional requirement for the Federal Magistrates Court (FMC) to advise parties to use a primary
dispute resolution process if the Court considers that it may help the parties to resolve the dispute.62

The Family Law Section of the Law Council of Australia and the Family Law Council are currently
developing best practice guidelines for family law practitioners, which are likely to recommend that
family law practitioners clearly outline to their clients the PDR processes available to them in
attempting to resolve the dispute.63 The New South Wales Barristers’ Rules include a requirement
that a barrister, or the instructing solicitor, inform the client of the alternatives to fully contested
adjudication of the case which are reasonably available, unless the barrister reasonably believes that
the client already understands those alternatives.64 The Law Council of Australia has included this
provision in its Model Rules of Professional Conduct,65 which have been adopted to varying extents
by the Law Council’s constituent bodies.

The Federal Court Act 1976 does not currently contain similar obligations requiring either the
Court or legal practitioners to consider whether to advise litigants about ADR. The view was
expressed during consultations conducted during the development of this paper that such provisions
were a useful ‘pointer’ or reminder to the Court and practitioners. It is recommended that the


60
   NADRAC, Diversity, viewed 2 October 2003, at <http://www.ag.gov.au/www/disputeresolutionHome.nsf
    /HeadingPagesDisplay/Diversity?OpenDocument>.
61
   Sections 14F & 14G Family Law Act 1975.
62
   Sections 22-24 Federal Magistrates Act 1999.
63
   Response to recommendation 21 in Australian Law Reform Commission Report, Managing Justice, viewed October
    2003, at <http://www.ag.gov.au/alrc89>.
64
   New South Wales Barristers’ Rules, rule 17A. An identical provision also exists in the New South Wales Revised
    Professional Conduct and Practice Rules, rule 17A.
65
   Model Rules of Professional Conduct, viewed September 2003, at <http://www.lawcouncil.asn.au/policy/
    1957352449>. Recommendation 18 in Managing Justice recommended such provisions.



                                                                                                              137
Federal Court Act be amended to insert such requirements.


Recommendation 18: That the Government support amendments to the Federal Court of Australia
Act 1976 to:
       (a) impose an obligation on the Court and legal practitioners to consider whether to advise
           the parties of the ADR options available to them to resolve the dispute, and
       (b) require the Court to advise the parties to use an ADR method if the Court considers it
           may help the parties to resolve the dispute.



The Commonwealth as a litigant
The Commonwealth Government has a special duty to act as a model litigant. The model litigant
obligation has a long history and was expressed as early as 1912 by the Chief Justice of the High
Court, Sir Samuel Griffiths.66 The obligation was summarised by Chief Justice King of the
Supreme Court of South Australia:67

      The Court and the Attorney-General … have a joint responsibility for fostering the expeditious
      conduct of and disposal of litigation. It is extremely important that the Crown Solicitor’s office
      set an example to the private legal profession as to conscientious compliance with the
      procedures designed to minimise cost and delay and to make the maximum use of the resources
      committed to the Court.

The model litigant obligation is enshrined in the Legal Services Directions which are made by the
Attorney-General to formalise the model litigant obligation and the wider purpose of setting out ‘the
framework and requirements for the performance of Commonwealth legal services, in particular,
the conduct of litigation by Commonwealth agencies.’68 The Directions are made as a statutory
instrument which ensures that they are legally enforceable and are ‘more than mere policy or
guidelines’.69

The model litigant obligation requires the Commonwealth to ‘act honestly and fairly in handling
claims brought by or against the Commonwealth or an agency’ and applies to all litigation,
including matters heard before courts, tribunals, inquiries, arbitration and other ADR processes.70
Furthermore, the Directions require the Commonwealth, to deal with claims promptly and without
causing any unnecessary delay, pay legitimate claims without litigation, act consistently in the
handling of claims and endeavour to avoid litigation wherever possible.71 However, they do not
specifically deal with the use of ADR to resolve disputes.


66
   Melbourne Steamship Limited v Moorhead (1912) 15 CLR 133.
67
   Kenny v State of South Australia (1987) 46 SASR 268 at 273.
68
   Attorney-General’s Department, Legal Services Directions, issued by the Attorney-General under s 55ZF of the
    Judiciary Act 1903 with effect from 1 September 1999, viewed August 2003 at
    <http://www.ag.gov.au/www/Archived/agd/olsc/Legal_Services_Directions.htm>.
69
   Govey I, ‘The Legal Services Directions: Obligations and Compliance Strategies’, speech, 7 September 2000, viewed
    August 2003 at <http://www.ag.gov.au/Archived/agd/olsc/LSD_Obligations_and_Compliance_Strategies.htm>.
70
   Attorney-General’s Department, Legal Services Directions, note 87, Appendix B, para 2, viewed August 2003 at
    <http://www.ag.gov.au/www/legalservicesHome.nsf/HeadingPagesDisplay/Legal+Services+Directions?
    OpenDocument>.
71
   Legal Services Directions, above, paras 2(a)-(d).



                                                                                                                138
This is in contrast to the situation in the United States of America, where the Administrative Dispute
Resolution Act 1990 requires every executive agency to establish specific ADR policies. Former
President Clinton also promulgated an executive order that required government lawyers to propose
the use of ADR in appropriate cases. The Department of Justice contains an Office of Dispute
Resolution, whose role it is to coordinate Departmental ADR.72

In the United Kingdom, the Lord Chancellor pledged in 2001 that government departments would
attempt to settle disputes using mediation or arbitration wherever possible. The Government also
decided that all future procurement contracts would include clauses on using ADR to resolve
disputes and that, wherever possible, claims for compensation would be settled by independent
assessment rather than going to court.73

The effectiveness of the pledge is being monitored and the second monitoring report was published
on 5 August 2003.74 This report found that, in the 2002-03 financial year, there was a large increase
in the number of disputes in which some kind of ADR method had been used or attempted, taking
the total number of cases to 617. Of these cases, 27% of the offers were accepted and, in the cases
where ADR was used, 89% settled without proceeding to a hearing.75 The report states that
government departments estimate that the use of ADR over the period of the report has led to
savings of over £6 million.

A report published by the Attorney-General’s Department in June 2003 reviewed the
Commonwealth Government’s use of legal services, and included some consideration of the
Commonwealth’s spending on legal costs associated with the use of ADR.76 That report found a
lack of reported use of ADR, with very few agencies reporting either use of external ADR services
or internal legal service spending on ADR. While the report was not directed towards ascertaining
the level of usage of ADR and there may be an element of not keeping records in a way that
facilitates the provision of detailed information about spending on ADR,77 it seems that there is the
capacity for the greater use of ADR by Commonwealth departments and agencies.

The report recommended that the Office of Legal Services Coordination78 be involved in actively
promoting the use of ADR in appropriate cases, and that that Office, in conjunction with NADRAC,
draw to agencies’ attention the desirability of using ADR in appropriate cases. There may also be
additional scope to encourage the further use of ADR in disputes involving the Commonwealth
through the Legal Services Directions.



72
   See <www.usdoj.gov.au/odr.index.html> for details, viewed November 2003.
73
   Lord Chancellor’s Department, press release, ‘Government pledges to settle legal disputes out of court’, 23 March
    2001, viewed July 2003, at <http://www.gnn.gov.United Kingdom/gnn/national.nsf/
    283b67283b5315e38025673500584c3c/1cc970674f15819f80256a18005777fd?OpenDocument>.
74
   Department for Constitutional Affairs, Report for the period April 2002 to March 2003 – Monitoring the effectiveness
    of the Government’s commitment to using Alternative Dispute Resolution (ADR), August 2003, viewed August
    2003, at <http://www.lcd.gov.United Kingdom/civil/adr/adrmon03.htm>.
75
   Lord Chancellor’s Department, press release, ‘Government pledges to settle legal disputes out of court’, 23 March
    2001, viewed July 2003, at <http://www.gnn.gov.United Kingdom/gnn/national.nsf/
    283b67283b5315e38025673500584c3c /1cc970674f15819f80256a18005777fd?OpenDocument>.
76
   Tongue S, Report on a Review of the Impact of the Judiciary Act Amendment Act 1999 on the Capacity of
    Government Departments and Agencies to Obtain Legal Services and on the Office of Legal Services Coordination,
    June 2003, viewed October 2003, at <http://www.ag.gov.au/JAAReport>.
77
   For example, expenditure on ADR may form part of expenditure on litigation, if ADR takes place during the
    litigation process.
78
   Part of the Attorney-General’s Department.



                                                                                                                   139
Although the Legal Services Directions do not currently require the Commonwealth to actively
consider the use of ADR, as mentioned above, they require the Commonwealth to endeavour to
avoid litigation wherever possible. The Directions are currently being reviewed and a provision
requiring the Commonwealth to consider using ADR, or an appendix dealing with the
Commonwealth’s obligations regarding ADR, may be included in order to further promote the
obligation to avoid litigation as much as possible.79


Recommendation 19: That the Legal Services Directions governing Commonwealth legal services
be amended to encourage the Commonwealth and Commonwealth agencies to use ADR in
resolving disputes in appropriate cases.

The amendments should be settled following consultation with relevant stakeholders through the
Attorney-General’s Department’s discussion paper on the review of the Legal Services Directions.



Industry-based dispute resolution schemes
Several industry dispute resolution schemes, which are effectively a form of ADR, have been
established over the past two decades in an attempt to save disputants the cost of legal action and
assist the relevant industry in improving its practices. Examples of such bodies include the
Australian Banking and Financial Services Ombudsman, the General Insurance Enquiries and
Complaints Scheme, the Insurance Brokers Disputes Limited, and the Telecommunications Industry
Ombudsman Scheme.80 The Australian Government has also established the Superannuation
Complaints Tribunal, an independent statutory authority set up to resolve complaints about trustees’
decisions in relation to certain superannuation funds.81 Additionally, it is intended to establish a
Postal Industry Ombudsman.82

The Financial Services Reform Act 2001 also inserted a new section 912A into the Corporations
Act 2001, which requires financial services licensees who have retail clients to have an internal
dispute resolution system in place that complies with certain standards and requirements, as well as
membership of an external dispute resolution scheme, both of which schemes must be approved by
the Australian Securities and Investments Commission.

The Government provided guidance for industry-based complaint handling schemes in the paper
entitled ‘Benchmarks for Industry-Based Customer Dispute Resolution Schemes’83 which focuses
on encouraging effective industry-based complaint handling schemes and highlights the importance

79
   It is expected that a discussion paper regarding proposed amendments to the Legal Services Directions will be
     released shortly.
80
   For further information see: Australian Banking Industry Ombudsman at <http://www.abio.org.au/ABIOWeb/
     abiowebsite.nsf> (viewed November 2003), General Insurance Enquiries and Complaints Scheme at
     <http://www.iecltd.com.au/> (viewed November 2003), Insurance Brokers Disputes Limited at
     <http://www.ibdltd.com.au/html/> (viewed November 2003), Telecommunications Industry Ombudsman Scheme at
     <http://www.tio.com.au/> (viewed November 2003).
81
   Superannuation Complaints Tribunal ‘Annual Report 2001-02’, p 4, viewed September 2003, at
     <http://203.147.241.209/bulletins/default.asp?images=d>.
82
   Media Release by Senator the Hon Richard Alston, Stamping Down on Postal Complaints, 1 October 2003, viewed
     October 2003, at <http://www.dcita.gov.au/Article/0,,0_1-2_15-4_116969,00.html>.
83
   Paper released by then Minister for Customs and Consumer Affairs, Senator the Hon Chris Ellison, viewed August
     2003 at <http://www.selfregulation.gov.au/publications/BenchmarksForIndustryBasedCustomerDispute
     ResolutionSchemes/index.asp>.



                                                                                                             140
of using ADR methods to ensure that these bodies have an informal and inquisitorial style of
dispute resolution. The Australian Competition and Consumer Commission has also recently
released a Discussion Paper on Guidelines for Developing Effective Voluntary Industry Codes. 84

These industry schemes are intended to resolve disputes effectively and are supported by industry
partly to reduce the negative impact dissatisfied customers can have on business.85 Some complaint
handling schemes operate in tandem with industry codes of conducts which increasingly focus on
the resolution of disputes prior to the commencement of proceedings. These schemes appear to
have had some effect in diverting disputants away from the formal civil justice system. For
example, the number of written complaints received by the Australian Banking and Financial
Services Ombudsman in 2002-03 was 6930, of which 87% were resolved after referral to the
institution.86 When they are well run, these schemes can encourage the resolution of a dispute at an
early stage, by offering ‘swift and cheap justice’, as well as encouraging effective complaint
handling processes within industry and promoting ‘good industry practice’.87

The Commonwealth Ombudsman plays a similar role in resolving disputes involving
Commonwealth departments and agencies. Members of the public can ask the Ombudsman to
investigate complaints where they claim that they have been adversely affected by defective
administration. During the 2002/2003 financial year, 19,850 complaints were made to the
Ombudsman. Of these, most involved Centrelink, the Australian Taxation Office and the Child
Support Agency.88


PRE-ACTION PROCEDURES
The early identification of issues in dispute and the prompt exchange of relevant information are
essential if disputes are to be resolved at the lowest appropriate level. Pre-action procedures are
another way of encouraging, or requiring, parties to undertake processes which will enable
information about the dispute to be exchanged prior to proceedings being issued, which may
demonstrate and promote the possibility, and desirability, of an early settlement.

Pre-action protocols in the United Kingdom
The Woolf reforms in the United Kingdom resulted in the introduction of a series of pre-action
protocols into the Civil Procedure Rules. Rather than regulating every aspect of pre-action
behaviour, the protocols were designed to ‘set out codes of sensible practice which parties are
expected to follow when they are faced with the prospect of litigation in an area to which a protocol
applies’.89 The United Kingdom protocols also encourage the use of ADR but, if litigation is
necessary, the early exchange of information is designed to expedite the conduct of the litigation.90


84
   Available at <http://www.accc.gov.au>, viewed November 2003.
85
   Administrative Review Council, Appendix D, ‘Industry complaint-handling mechanisms’, Issues Paper for
    Administrative Review Council Report No 42, The Contracting Out of Government Services, para 1.
86
   Banking and Financial Services Ombudsman, Annual Report Media Release 2003, viewed November 2003, at
    <http://www.abio.org.au/ABIOWeb/abiowebsite.nsf>.
87
   Stuhmcke A, ‘Resolving consumer disputes: Out of the courts and into private industry’, (2003) February 31(1)
    Australian Business Law Review 48, at p 50.
88
   Commonwealth Ombudsman, Annual Report 2002-03, p 10, viewed October 2003, at
    <http://www.comb.gov.au/publications_information/Annual_Reports/current_annual_report.html>.
89
   Woolf, Final Report, July 1996, Chapter 10, para 6.
90
   Woolf, Final Report, July 1996, Chapter 10, para 6.



                                                                                                                   141
The protocols differ in the exact requirements for each area of jurisdiction but, generally, prior to
commencing proceedings, a letter of claim must be sent by the claimant to the defendant setting out
a summary of facts on which the claim is based. The defendant must then acknowledge the letter of
claim and, in some circumstances, send the claimant a letter of response setting out whether the
claims are accepted or rejected and details of any counterclaims. In some cases, for example in
construction and engineering disputes, the parties must also attend a pre-action meeting.91
Non-compliance with a pre-action protocol may be taken into account by the court when
considering the management of the case and when making costs orders.92

Eight different protocols have been progressively introduced in the United Kingdom, dealing with
clinical negligence, personal injury, construction and engineering, professional negligence, judicial
review, defamation, disease and illness claims and housing disputes.

A review of the civil justice reforms, including pre-action protocols, was conducted in August 2002
and found that the protocols were ‘working well to promote settlement and a culture of openness
and cooperation’.93 The review cited other research that had evaluated the impact of the clinical
negligence and personal injury protocols and found that they had contributed to better
communication, better exchange of information, earlier investigation by defendants, improved
opportunities for settlement, and clear ground rules on how to formulate and respond to claims and
focus on the key issues at an early stage.94

Pre-lodgement procedures in South Australia and Queensland
Some State courts have introduced similar pre-filing procedures. The South Australian Supreme
and District Courts have introduced a requirement that the plaintiff notify the defendant, or
defendants, of their intention to file a claim at least 90 days prior to doing so.95 The South
Australian Magistrates Court has a similar pre-lodgement notice requirement which precludes
plaintiffs from recovering costs unless they give 21 days notice to the defendant prior to filing the
claim. A separate procedure exists for personal injury claims in which the plaintiff must give 90
days notice to the defendant and the defendant’s insurer.96

Furthermore, although notice may still be given as a lawyer’s letter of demand, the Magistrates
Court has produced a final notice of claim which is available from their website for the cost of
$10.97 The availability of the form on the Internet has been said to have assisted in improving
access to dispute resolution, especially for self-represented litigants, since the ready availability of
the form has avoided the need to instruct lawyers in simpler cases, particularly debt collection. 98
These procedures are designed to encourage parties to settle prior to lodging proceedings, hence

91
   The full text of the pre-action protocols can be viewed at
    <http://www.lcd.gov.uk/civil/procrules_fin/menus/protocol.htm>.
92
   Lord Chancellor’s Department, ‘Practice Direction – Protocols’, Practice Direction 2.1, viewed June 2003 at
    <http://www.lcd.gov.uk/civil/procrules_fin/contents/practice_directions/pd_protocol.htm>.
93
   Lord Chancellor’s Department, Further findings, August 2002, para 3.13.
94
   See Lord Chancellor’s Department, Further Findings above, paras 3.17 and 3.22 citing Clinical Disputes Forum
    survey, September 2001 and Civil Justice Council, ‘More Civil Justice? The impact of the Woolf reforms on pre-
    action behaviour’, 25 April 2002.
95
   South Australia Supreme Court Rules, Rule 6A.
96
   Magistrates Court Rules 1992 (SA), Rule 20A(1) and (2).
97
   Cannon A, ‘Electronic prelodgement notices in the civil jurisdiction of the Magistrates Court’, 22 October 2002,
    viewed August 2003, at <http://www.aija.org.au/tech3/program/presentations/Prelodgm.doc>.
98
   Courts Administration Authority South Australia, ‘Magistrate Court – Final notices’, viewed September 2003, at
    <http://www.courts.sa.gov.au/courts/magistrates/final_notices.html>.



                                                                                                                 142
reducing cost and delay.99 They appear to be working well and the legal profession seems content
with their operation.100

Queensland has also introduced similar legislative provisions relating to personal injury claims
which require notice to be given to the defendant within specified time frames. The notice must be
given within either nine months of the incident or first appearance of symptoms of the injury or
within one month of the plaintiff first consulting a lawyer about seeking damages for the personal
injury, whichever is the earlier.101 The defendant must then provide a preliminary response within
one month.102 The introduction of this provision has received widespread support from the legal
profession in Queensland.103

Use of pre-action procedures in federal courts
The Family Court is currently amending its rules and proposes to include pre-action procedures for
both financial and parenting matters. The proposed procedures are designed to encourage early
disclosure and exchange of information, provide the parties with a procedure to resolve the case
quickly and to facilitate the efficient management of the case.104 Before commencing proceedings
parties would be expected to comply with the pre-action procedures and consider resolving the
dispute using primary dispute resolution methods such as negotiation, counselling, mediation and
conciliation.105

Although the Family Court expects parties to comply with the pre-action procedures unless there
are good reasons not to do so, compliance will not be a pre-condition to filing proceedings.
However, the Court will have the power to take compliance or non-compliance with the procedures
into account when making orders about case management and costs.106

General pre-action protocols
The United Kingdom protocols, and those proposed by the Family Court, are directed at specific
areas of a court’s jurisdiction. Another option is to implement a general procedure which would
apply to all types of claims not covered by a specific procedure. Solicitors already often negotiate
settlements to disputes without proceedings being filed. However, a general pre-action procedure
could provide a framework for the resolution of disputes and a code of good practice which would
assist litigants, especially self-represented litigants, to understand how to take the first steps in
resolving a dispute.107 A general pre-action procedure may also contribute to creating the

99
   Cannon A, ‘Electronic prelodgement notices in the civil jurisdiction of the Magistrates Court’, 22 October 2002,
    viewed August 2003, at <http://www.aija.org.au/tech3/program/presentations/Prelodgm.doc>.
100
    Abbott T, Australian Institute of Judicial Administration Conference, speech Brisbane, July 2002, viewed September
    2003, at <http://www.aija.org.au/ac02/Abbott.rtf>.
101
    Section 9(3), Personal Injuries Proceedings Act 2002 (Qld).
102
    Section 10(1), Personal Injuries Proceedings Act 2002 (Qld).
103
    Abbott T, Australian Institute of Judicial Administration Conference, speech Brisbane, July 2002, viewed September
    2003, at <http://www.aija.org.au/ac02/Abbott.rtf>.
104
    Mayes L, ‘Pre-action procedure’, para 1.5, viewed August 2003, at <http://www.familycourt.gov.au/preaction.pdf>.
105
    Draft Family Law Rules, rule 1.04(4)(a) and 1.04(4)(b), viewed October 2003, at
    http://www.familycourt.gov.au/html/newrules.html>.
106
    See Draft Family Law Rules, rules 1.09(2)(e), 11.03 and 13.01(2). It is noted that the Family Law Section of the
    Law Council of Australia opposes this aspect of the pre-action protocols, on the grounds that it may generate
    unnecessary arguments about costs.
107
    Lord Chancellor’s Department, General pre-action protocol, consultation paper, October 2001, viewed June 2003, at
    <http://www.lcd.gov.United Kingdom/consult/preaction/preaction.htm>.



                                                                                                                  143
appropriate conditions for negotiation, as well as removing the tactical consideration of one side
having to propose it first.108

A proposal to introduce a general pre-action protocol was considered in the United Kingdom to
avoid the proliferation to an unmanageable level of protocols directed at specific topics. The
feedback on the idea of a general protocol highlighted the difficulty of drafting a meaningful
protocol which would apply to all types of disputes and the consensus to emerge from the feedback
was that a general protocol would be likely to lead to confusion and delay.109

It may be preferable to devise a general guide to pre-action behaviour which is not enforceable but
which provides parties, especially self-represented litigants, with an idea of the best and most
effective way to quickly resolve the dispute at hand. An example of such a general requirement is a
practice direction about pre-action protocols, issued under the Civil Procedure Rules in the United
Kingdom. This includes an expectation that, in cases not covered by a specific protocol, the parties
will nonetheless act reasonably in exchanging information and documents relevant to the claim and
will try to avoid the necessity of starting proceedings.110 Courts could be encouraged to consider
implementing these kinds of procedures for either appropriate categories of cases or more generally.


Recommendation 20: That the federal courts consider the feasibility of implementing
pre-action procedures to encourage parties to undertake conduct designed to facilitate settlement
before proceedings are filed.




108
    Abbott T, Australian Institute of Judicial Administration Conference, speech Brisbane, July 2002, viewed September
    2003, at <http://www.aija.org.au/ac02/Abbott.rtf>.
109
    Lord Chancellor’s Department, General pre-action protocol, responses to the consultation paper, July 2002, viewed
    June 2003, at <http://www.lcd.gov.United Kingdom/consult/preaction/preactionresp.htm>.
110
    Lord Chancellor’s Department, ‘Practice Direction – Protocols’, Practice Direction 2.1, Part 4, viewed June 2003 at
    <http://www.lcd.gov.uk/civil/procrules_fin/contents/practice_directions/pd_protocol.htm>.



                                                                                                                   144
USE OF ADR DURING GENERAL FEDERAL LAW PROCEEDINGS
This section of the Chapter considers the use of ADR in federal courts outside the family law
context. ADR in family law is dealt with in the next section.

ADR in the federal courts
ADR has been used by the courts over many years to ‘facilitate agreements concerning issues in
dispute and to explore the possibilities of a settlement.’111 Whilst mediation has only been available
in the Federal Court since 1987, courts have always used other less formal means to encourage
parties to consider the prospects of settlement. The Federal Court has indicated that, on average,
only 22% of first instance applications proceed to judgment.

Given that litigants may not be aware of the alternatives to litigation, the courts can play an
important role in encouraging, and providing information on, ADR methods. This has been
formalised in the Federal Magistrates Act and the Family Law Act. These kind of provisions
reinforce the constructive role that the courts can play in attempting to resolve disputes at the lowest
appropriate level.

There is a risk that it may be only when litigants are already within the court system that they
discover alternatives to it, such as mediation and other ADR methods. Courts must therefore
develop the capacity to identify which cases are amenable to ADR, and make decisions about
whether to refer the dispute to ADR and, if so, when.

Since the Federal Court began referring matters to mediation in 1987, the settlement rate at
mediation has averaged 55%. Similarly, of the 85 finalised matters referred to mediation in the
general federal law jurisdiction of the FMC in 2002-03, 51% settled in full or in part and another
8% settled before the mediation.112 Of course, settlement rates are not the only measure of success
of mediation. Many mediations result in a narrowing of the issues in dispute in the proceeding
between the parties, which may assist in shortening its final disposition.

The following chart sets out the number of matters referred to mediation by the Federal Court since
1987:
                                                          Federal Court of Australia
                                           Number of matters referred to Assisted Dispute Resolution
                                                       (Mediation) 1987-88 - 2002-03
                                     400
                                                                                                         347
                                     350                                                                       314
                                                                                                                     296 284
                                     300                                                                                     276
                                                                                                   244
                         Referrals




                                     250
                                                                     206               206
                                     200                                                     179
                                                           142 151         152
                                     150
                                                     104                         102
                                     100   57   55
                                     50
                                      0
                                            19

                                            19 8

                                            19 9

                                            19 0

                                            19 1

                                            19 2

                                            19 3

                                            19 4

                                            19 5

                                            19 6

                                            19 7

                                            19 8

                                            19 9

                                            20 0

                                            20 1

                                            20 2
                                              87

                                              88

                                              89

                                              90

                                              91

                                              92

                                              93

                                              94

                                              95

                                              96

                                              97

                                              98

                                              99

                                              00

                                              01

                                              02
                                                -8

                                                -8

                                                -9

                                                -9

                                                -9

                                                -9

                                                -9

                                                -9

                                                -9

                                                -9

                                                -9

                                                -9

                                                -0

                                                -0

                                                -0

                                                -0
                                                   3




                                                                            Financial Year



111
    Australian Law Reform Commission, Review of the adversarial system of litigation, Issues Paper No. 25, June 1998,
    para 2.6.
112
    Federal Magistrates Court, Annual Report 2002-2003, p 35.



                                                                                                                                   145
The numbers of referrals to mediation made by the Federal Court have decreased over the past five
years. However, this may reflect the increased use of Order 10, Rule 1(2)(h) of the Federal Court
Rules, an alternative to mediation, under which matters may be referred to a settlement conference
with a registrar.113

Nevertheless, the view was expressed during consultations held during the development of this
paper that the Federal Court makes less use of mediation than some State Supreme Courts. This
may partly reflect the nature of the Federal Court’s jurisdiction, particularly the high numbers of
migration cases,114 which are generally not suitable for mediation, as opposed to the jurisdiction of
State courts, where many more matters are amenable to ADR.115 The Court has not conducted a
formal evaluation of its mediation program recently.116 Such an evaluation may assist the Federal
Court in considering whether there is room to make more referrals to ADR. However, the Court’s
ADR committee has encouraged judges to make greater use of mediation through changes to the
Federal Court Rules, the introduction of a regular ADR newsletter and judicial education.

One way to encourage the greater use of mediation in the Federal Court may be to abolish the fee
that is payable under the Federal Court Regulations for mediation.117 The Federal Court considers
that potential savings in judicial and administrative resources would far exceed any lost revenue,118
since mediations can result in considerable savings to both litigants and the Court.

Consultations undertaken during the course of the development of this paper indicated that the
present mediation fee is unlikely to deter commercial litigants from mediating, given that the fee is
only $287, which is far less than a commercial mediator would charge. The fee can also be waived
in cases where its payment would cause financial hardship.119 However, the fee may act as a slight
disincentive to mediation where the applicant is an individual whose financial circumstances do not
warrant a fee waiver, but who does not have the financial resources of a commercial litigant.

Given overall savings to both litigants and the system that would result from an increased use of
mediation, it is recommended that the mediation fee be abolished. A similar fee is imposed for
general federal law mediations in the FMC, and it is recommended that this fee be abolished as
well, for the same reasons.


Recommendation 21: That the mediation fees currently payable under the Federal Court of
Australia Regulations 1978 and the Federal Magistrates Regulations 2000 be abolished.




113
    Federal Court consultations, 19 September 2003.
114
    1836 migration matters were filed in the 2002/2003 financial year, out of a total of 4,843 matters being filed in total:
    Federal Court of Australia Annual Report 2002-2003.
115
    For example, personal injuries and building disputes.
116
    The Australian Law Reform Commission recommended in Managing Justice (rec 92) that the Federal Court
    continue to monitory the use and outcomes of court annexed mediation, including the parties’ views as to whether
    the mediation assisted in resolving all or a significant part of the dispute.
117
    Regulation 2(1A) Federal Court of Australia Regulations 1978 provides that a fee is payable by the applicant in the
    proceedings for a mediation by a court officer. The prescribed fee is presently $287 and $574 for corporations. A
    fee of $218 is payable for mediations conducted by court officers in the Federal Magistrates Court in general federal
    law proceedings: Regulation 6(2) Federal Magistrates Regulations 2000.
118
    The revenue raised from the mediation fee is estimated by the Federal Court to be approximately $60,000.
119
    Regulations 2(4)(c) and (d) Federal Court of Australia Regulations 1978.



                                                                                                                        146
Of the 270 matters that the Federal Court referred to mediation in the 2002/2003 financial year,
most were in the following areas of jurisdiction:

Federal Court matters referred to mediation, 2002-2003


      Area of jurisdiction    Matters referred to   Total matters filed120   % matters referred to   For cases finalised, %
                                  mediation                                       mediation          settled in full or in part
                                                                                                     at or before mediation
 Workplace relations                  86                    187                     46%                        61%
      Trade practices                 72                    241                     30%                        42%
        Corporations                  41                    456                      9%                        48%
         Copyright                    28                     76                     37%                        47%
        Trade marks                   12                     93                     13%                        67%
         Bankruptcy                   8                     482                      2%                        0%
       Human rights                   5                      30                     17%                        25%
           Patents                    3                      52                      6%                        n/a*
  Tax administration                  3                      59                      5%                       n/a**
         Admiralty                    3                      55                      5%                        50%
       Other matters                 nil                   3,112                     0%                        0%
            Total                    270                   4,843                     6%                       50%

          *1 was not settled, 2 were ongoing
          **all were still ongoing


This shows that mediation is most widely used in areas of law such as workplace relations,
copyright and trade practices. Settlement rates were particularly high in trade marks and workplace
relations matters.

Mediation is also an important part of the process established under the Native Title Act 1993 to
provide a complete resolution of the issues involved in native title disputes, promote the value of
reaching an agreement about the dispute and avoiding lengthy and costly litigation.121 As discussed
above, the Federal Court may refer native title matters to the National Native Title Tribunal for
mediation and increasing use is also being made of other ADR methods, such as early neutral
evaluation, to resolve native title disputes.




120
    Not all matters referred to mediation in 2002-03 would necessarily be matters filed in that year: A number of the
    referrals may relate to matters filed prior to 2002-03, and some matters filed in 2002-03 may be referred to
    mediation in the 2003-04 financial year.
121
    Neate G, ‘Reconciliation on the ground: Meeting the challenges of native title mediation’, paper delivered at the Asia
    Pacific Mediation Forum, Adelaide, South Australia, December 1 2001, p 5, viewed September 2003, at
    <http://www.nntt.gov.au/metacard/files/Reconciliation_ground/Asia_Pacific_Mediation_Forum.pdf>.



                                                                                                                          147
Referral to ADR: Consensual or non-consensual
The Federal Court currently has the power to refer proceedings to mediation under section 53A of
the Federal Court of Australia Act 1976 either with or without the consent of the parties.122 Prior to
the Court acquiring the power to order parties to mediation without consent, the Chief Justice of the
Federal Court outlined the policy behind the provision:123

      The proposal that there should be power to direct mediation even when the parties do not
      consent recognises that there may be some cases in which, despite the initial opposition of one
      or more of the parties, mediation can be valuable. This is not to say, of course, that if the power
      was available it should be exercised frequently; clearly the desirability of ordering mediation
      will depend upon all the circumstances of a particular case. As in all cases, but especially in the
      context of a compulsory referral to mediation, care should be taken to guard against a party
      being disadvantage[d] by the mediation process.

Compulsory referral to ADR may assist in situations where the parties or their lawyers are so
accustomed to the litigation process that they are unlikely to use ADR voluntarily, or where a
particular lawyer has a prejudice against ADR which may be overcome by an order from the court
to attend.124 In turn, the expanded use of ADR, even where the parties do not consent, may educate
parties and lawyers about the potential benefits of ADR, which may result in increased voluntary
use of ADR processes outside of the court system. Where parties are referred to ADR by the courts,
the timing and type of ADR can be controlled to save expense. For example, courts could enforce
ADR at a stage in proceedings just before a significant expense is about to be incurred.125

However, non-consensual ADR may disadvantage less financially well-off litigants by erecting a
financial barrier to having the matter decided at trial. Similarly, not all cases are suited to resolution
by ADR methods and, if the parties are not ready, or willing, to settle, then ADR may simply delay,
and increase the cost of, resolving the dispute.

Strong arguments have been advanced that ADR is essentially a consensual process, dependent on
the participants actually wanting to settle the dispute, and being willing to negotiate and bargain in
good faith.126 However, experience indicates that the behaviour of the parties and their lawyers at
court-ordered mediations do not differ from behaviour at voluntary mediations, probably because
once the parties have committed their time and money to the process they generally try to take
advantage of the opportunity to resolve the dispute.127 While the Federal Court has not conducted
an evaluation of non-consensual mediation, anecdotal feedback from the Court indicates that similar
rates of settlement are achieved at non-consensual mediation as at consensual mediation.128




122
    A recent article has analysed the use of similar compulsory mediation powers in the New South Wales Supreme
     Court: Venus P, Litigation: Advantages in Mandatory Mediation, Law Society of New South Wales Journal,
     November 2003, p 46.
123
    The Hon Chief Justice M Black, ‘The Courts, Tribunals and ADR: Assisted Dispute Resolution in the Federal Court
     of Australia’ (1996) 7 Australian Dispute Resolution Journal 138 at p 144.
124
    ‘Court-ordered mediation – the debate’ (2003) June New Zealand Law Journal 210.
125
    Dawson M, ‘Non-consensual alternative dispute resolution: Pros and cons’ (1993) Australian Dispute Resolution
     Journal, 173, at p 175.
126
    David J, ‘Designing a dispute resolution system’ (1994) 1 Commercial Dispute Resolution Journal 26, at pp 32-33.
127
    Angyal R, ‘Court-ordered mediation: Is it undesirable?’(2003) Winter, Bar News 39 at p 40.
128
    Federal Court consultations, 1 July 2003.



                                                                                                                 148
Court-annexed ADR
In the federal civil justice system, much of the mediation and conciliation work has been conducted
by court staff, particularly by specially trained registrars. This is known as court-annexed ADR.
The availability of court-annexed ADR processes ensures that ADR will be readily available at any
stage of the proceedings and may allow the court to oversee more closely the quality of the services
provided.

There is some debate about whether court-annexed ADR is appropriate, or whether courts should
instead refer matters to external ADR providers. The arguments advanced against court annexed
ADR include that parties may feel inhibited by the presence of a court officer in the ADR
proceedings and that ADR, as the antithesis of litigation, should be conducted away from court staff
and premises.129

However, court-annexed mediation can contribute to reducing the impact of some of the problems
associated with ADR. For example, the involvement of the court in overseeing the ADR process
used to resolve the dispute may minimise the possibility that a ‘significant power imbalance could
result in an unjust settlement [being] reached external to the court’.130 The participation of the court
in overseeing the provision of ADR services may also improve the capacity of the court to control
the quality of these services. Concern has also been expressed that ‘the administration of justice by
the courts…may be compromised by the involvement of outside neutrals and the association of
courts…with outside commercial interests.’131

The Federal Court may refer matters to external mediators instead of registrars. Since 1998-99 the
percentage of matters referred to external mediators has varied from 22% of total referrals in
1998-99, to 14% of total referrals in 2002-03.132 Feedback received during the preparation of this
paper indicates that the legal profession is generally satisfied with the quality of the mediations
conducted by court registrars. There would not appear to be any reason to change the present
situation of registrars being used as mediators. It is still possible for the parties to use an external
mediator should they prefer to do so.

Judicial conduct of ADR
Judicial involvement in ADR is a contentious topic. The argument has been advanced that the
involvement of judges in mediation in particular threatens ‘public confidence in the integrity and
impartiality of the court’.133

One feature of mediation that may render it unsuitable for judicial involvement is the option for the
mediator to discuss the dispute with each party separately, and in private. The Guide to Judicial
Conduct published by the Australian Institute of Judicial Administration on behalf of the Council of
Chief Justices states that, save in the most exceptional circumstances, the judge and one of the

129
    Western Australian Law Reform Commission, ‘Court based or community ADR and Alternative Forums for
     Adjudication’, Review of the Criminal and Civil Justice System (Consultation Draft), p 287, viewed September
     2003, at <http://www.lrc.justice.wa.gov.au/RevCCJS-p92/ConDrafts/2-3adr.pdf>.
130
    Western Australian Law Reform Commission above, p 288.
131
    Australian Law Reform Commission, Review of the adversarial system of litigation, Issues Paper No. 25, June 1998,
     para 5.84.
132
    In 2002-03, 39 matters were referred to external mediators from a total of 270 referrals, Federal Court, Annual
     Report 2002-03, p 43.
133
    Australian Law Reform Commission, Review of the adversarial system of litigation, Issues Paper No. 25, June 1998,
     para 5.83.



                                                                                                                 149
parties should not communicate other than in the presence of the other parties.134 The Hon Sir
Laurence Street KCMG AC has observed that:135

       A court that makes available a judge…to conduct a true mediation is forsaking a fundamental
       concept upon which confidence in the integrity and impartiality of the court system is founded.
       Private access to a representative of the court by one party, in which the dispute is discussed and
       views expressed in the absence of the other party, is a repudiation of basic principles of fairness
       and the absence of hidden influence that the community rightly expects and demands that the
       courts observe.

Another concern is that it may be difficult to educate parties on the proper role of a judicial
mediator, to ensure that they hold reasonable expectations of what the process can deliver. For
example, a mediation conducted by a judge may lead to confusion amongst the parties about what
the role of the judge is, and they may be expecting a judicial pronouncement about the merits and
potential success of their claim.

The question arises as to whether there are any implications under Chapter III of the Constitution in
judges acting as mediators. Chapter III of the Constitution sets out the judicial power of the
Commonwealth and a long line of cases have attempted to define exactly what judicial power is.
One widely recognised definition of judicial power was given by Chief Justice Griffith in Huddart,
Parker & Co Pty Ltd v Moorehead:136

       I am of the opinion that the words ‘judicial power’ as used in sec. 71 of the Constitution mean
       the power which every sovereign authority must of necessity have to decide controversies
       between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or
       property.

In Wilson v Minister for Aboriginal Affairs,137 Gaudron J indicated that judicial process is so central
to the exercise of judicial power as to form part of the power itself. In Re Nolan; Ex parte Young,138
Gaudron J indicated that judicial process includes open and public inquiry, natural justice and
proper process or procedure (the finding of facts, the application of law and the application of the
law to the facts). Arguably, the process of mediation does not reflect this description of judicial
process, and may hence be incompatible with the judicial power contained in Chapter III of the
Constitution.

The majority in Grollo v Palmer described three situations in which a power vested on a judge
would be incompatible with their judicial functions:139

       Incompatibility might consist in so permanent and complete commitment to performance of
       non-judicial functions by a judge that the further performance of substantial judicial functions
       by that judge is not practicable. It might consist in the performance of non-judicial functions of
       such a nature that the capacity of the judge to perform his or her functions with integrity is
       compromised or impaired. Or it might consist in the performance of non-judicial functions of
       such a nature that public confidence in the integrity of the judiciary as an institution or in the

134
    Australian Institute of Judicial Administration, Guide to Judicial Conduct, 2002, p 15, citing R v Magistrates’ Court
     at Lilydale; ex parte Ciccone [1973] VR 122 at 127 and Re JRL; ex parte CJL (1986) 161 CLR 342 per Gibbs CJ at
     346 and Mason J at 350-351. However, the Guide states that whether judges conduct mediations is ultimately a
     matter for the court concerned, at pp 16-17.
135
    Street L, ‘Mediation and the judicial institution’ (1997) 71(10) Australian Law Journal 794, pp 795-6.
136
    (1909) CLR 330 at 357.
137
    (1996) 189 CLR 1.
138
    (1991) 172 CLR 460 at 496.
139
    (1995) 184 CLR 1.



                                                                                                                     150
       capacity of the individual judge to perform his or her judicial functions with integrity is
       diminished.

It has been argued that ‘mediation’s lack of observance of the fundamental elements of the judicial
process must mean that the conduct of mediation cannot equate to an exercise of judicial power’.140
Hence, a judge could only conduct mediation if to do so would not offend the incompatibility test in
Grollo. Tucker argues that there is the potential for judicial mediation to offend the third limb of
the test in Grollo, as it may diminish public confidence in the judiciary by threatening the ‘bubble
of impartiality’ surrounding the judiciary, which is essential in maintaining the legitimacy of its
decisions.141

However, His Honour Justice Moore considers that judicial role cannot be viewed as static. He
argues that the role of a mediator is not necessarily incompatible with the judicial function and that
cases may sometimes arise where the likelihood of settlement at mediation is so high that a judge
feels justified in conducting the mediation themselves and that measures can easily be put in place
to ensure that a judge who conducts a mediation will play no further role in the case.142

Some ADR methods other than mediation may be more amenable to judicial involvement, and may
actually benefit from the experience and presence of a judicial officer. For example, case
conferences have been, and will continue to be, useful settlement tools and, as long as they are
conducted in open ‘court’ and in the presence of both parties, there may not be a problem with a
judge providing an appraisal of the case to promote settlement, provided that they do not conduct
the eventual trial of the proceeding.143 Additionally, it could be said that facilitating settlements is
already an important part of everyday judicial activities, given that comments from the bench about
the merits of continuing to pursue litigation can have a profound effect on litigants.

Whether judges engage in ADR is generally a matter for the courts themselves rather than the
Government. However it must be borne in mind that the primary role of judges is to hear and
decide cases. As Sir Laurence Street has observed, ‘[j]udges are chosen for their perceived qualities
and ability to exercise this power of adjudication. Courts are established, staffed and resourced to
enable judges to fulfil this responsible role.’144 Judicial involvement in ADR needs to be managed
carefully to ensure that it is only used strategically, in cases identified as being specifically suited to
judicial ADR, and that it does not become a standard feature of the case management path adopted
by the courts.

Case evaluation
The Family Court is currently experimenting with ‘judicial settlement conferences’, where judges
will discuss and evaluate the merits and prospects of the matter and may provide their opinion on
how a case is likely to be decided if it goes to trial. The Court is choosing cases to pilot that would
otherwise be likely to last several days and the conference is held when all the parties are ready for
trial and all the evidence is available. Rates of settlement have been extremely high. A formal
evaluation of the judicial settlement conferences is currently underway.145
140
    Tucker P, ‘Judges as mediators: A Chapter III prohibition’ (2000) 11(2) Australian Dispute Resolution Journal 84 at
    p 88.
141
    See Tucker above, at p 94.
142
    Moore M, ‘Judges as mediators: A Chapter III prohibition or accommodation?’ (2003) 14 Australian Dispute
    Resolution Journal 188 at pp 194-7.
143
    Street L, ‘Mediation and the judicial institution’ (1997) 71(10) Australian Law Journal 794 at p 796.
144
    Street L, as above, at p 795.
145
    Family Court consultations, 17 September 2003.



                                                                                                                   151
Case evaluation has also been used as a method of judicial ADR in the South Australian Magistrates
Court and has been incorporated into its pre-trial processes. This allows a magistrate to ‘give an
intimation of the result of a case at any time … [which]…must not be available to the trial
magistrate until after judgement when the trial magistrate may take it into account in relation to
costs.’146 This method of ADR does not compromise the rights of the parties to a trial, as full
determination remains an available option, and has the potential to act as a ‘reality check’ to
promote to the parties the value of settling the dispute.147

A similar form of ADR used in the Queensland Supreme Court is known as case appraisal, which
parties may either be ordered, or elect, to attend. A case-appraiser, drawn from an approved list of
experienced lawyers held by the registrar of the Court, will assess the merits of a case and reach a
decision. The case appraiser’s opinion will be put in writing and a copy will be given to each of the
parties and a certificate, as well as copy of the decision, will be filed with the registrar. If a party is
dissatisfied with the decision of the case appraiser they may elect to go to trial. The parties can also
apply to the court to have an order made giving effect to the decision, which will make it
enforceable.148 Between July 1999 and July 2002, 55 matters were referred to case appraisal from
the Queensland Supreme Court. Of these matters, a case appraisal certificate was filed in 49
matters and only 9 matters proceeded to trial.149

The Commercial Court in the United Kingdom has been able to conduct judicial neutral evaluation
since 1996, although it has only been used in a small number of cases. The process differs slightly
from case appraisal, as the judge will give his or her opinion as to the strengths and weaknesses of
each party’s case based on a summary of the evidence and some oral argument. This opinion can
then be used by the parties as a basis for settlement or further negotiation. The judge who
conducted the neutral evaluation will take no further part in the case if the parties are unable to
agree and the matter comes to trial.150

The Federal Court is also using neutral evaluation as an adjunct to mediation in some native title
matters to ‘encourage the parties to grapple with the issues with a view to assisting settlement’.151
In this context, an evaluator will be either selected by the parties or, if no agreement can be reached,
appointed by the Court. The evaluator will consider the available evidence and may also hear oral
representations from native title claimants. The evaluator will then provide the parties with a
non-binding opinion on the strengths and weaknesses of the case.152

Section 53A of the Federal Court of Australia Act 1976 currently allows the Court to refer parties
to either mediation or arbitration. In addition to mediation and arbitration, under section 26 Federal
Magistrates Act 1999, parties in general federal law matters may also be referred to conciliation.
To increase the dispute resolution options available to the courts, it would be useful to amend these
Acts to allow the courts to refer matters to a broader range of alternative dispute resolution
processes in non-family law proceedings.


146
    Magistrates Court Rules 1992 (SA), Rule 106(10).
147
    Cannon A, ‘What is the proper role of judicial officers in ADR?’, paper delivered at the 6 th National Mediation
    Conference, 18-20 July 2002, Canberra.
148
    Queensland Courts, ‘Alternative dispute resolution in Supreme Court civil actions’, viewed September 2003, at
    <http://www.courts.qld.gov.au/publications/infosheets/adr.pdf>.
149
    Supreme Court of Queensland, Annual Report 2001-02, p 28.
150
    Genn H, Court-based initiatives for non-family civil disputes: The Commercial Court and the Court of Appeal, Lord
    Chancellor’s Department Research Secretariat, March 2002, paras 7.15-7.16.
151
    Federal Court, Annual Report 2002-03, p 39.
152
    Federal Court, Annual Report 2002-03, p 39.



                                                                                                                 152
Recommendation 22: That the Government support amendments to the Federal Court of Australia
Act 1976 to allow the Court to refer proceedings, or a part of them, to conciliation, case appraisal or
neutral evaluation, either with or without the consent of the parties to the proceedings.

Recommendation 23: That the Government support amendments to the Federal Magistrates Act
1999 to allow the Court to refer proceedings, or a part of them, to case appraisal or neutral
evaluation, either with or without the consent of the parties to the proceedings.



PRIMARY DISPUTE RESOLUTION IN FAMILY LAW DISPUTES
Family law disputes are unique within the federal civil justice system since they occur during a time
of great personal stress for the disputants and are often complicated by the involvement of children
and the desirability of the parties maintaining an amicable relationship with one another for the sake
of their children. The Family Law Act 1975 reflects the value of ADR as the primary means of
resolving family law disputes rather than litigation. The term primary dispute resolution (PDR) is
used in the Family Law Act to refer to ADR procedures and services aimed at resolving disputes
without judicial involvement, including counselling services, mediation services and arbitration
services.153

Counselling includes a range of services such as marriage counselling and child counselling.
Counselling may also be provided regarding any matter that arises under the Family Law Act that
involves a parent or adoptive parent of a child, a child or a party to a marriage.154 Mediation can be
provided for disputes relating to either children or property, and arbitration can be used for property
disputes.155

The Family Court has chosen to use different terminology to that in the Family Law Act, the main
difference being that the Court refers to all ‘services offered by the Court to help settle disputes by
agreement rather than hearing’ in children’s matters as mediation. This means, for example, that
counselling is included in the definition of ‘mediation’.156

PDR services in the Family Court are generally provided by either in-house counsellors or
registrars, depending on the subject matter of the dispute, and, in most registries, the Family Court
also refers people seeking pre-filing counselling to community organisations. Financial matters are
likely to be referred to a conciliation conference with a registrar who has legal training, whereas
children’s matters are likely to be referred to mediation services, which could be conducted by a
mediator trained in law, social work or psychology, depending on the issues concerned.157 The
FMC utilises the mediation and conciliation services provided by the Family Court, as well as
referring some PDR matters to external community based organisations.158 The nature of PDR
services used by the courts is discussed in more detail below.



153
    Section 14E Family Law Act 1975.
154
    All described in subsection 4(1) Family Law Act 1975.
155
    Sections 19B and 19D Family Law Act 1975.
156
    Family Court, ‘Case Management Directions’, Practice Direction 3 of 2002, direction 12, p 37, viewed September
    2003, at <http://www.familycourt.gov.au/cmd/cmd.pdf>.
157
    Family Court Case Management Directions, as above, pp 35-37.
158
    Federal Magistrates Court, Annual Report 2001-02, pp 42-43.



                                                                                                                 153
Many community organisations also receive funding under the Family Relationships Services
Program (FRSP), through the Attorney-General’s Department and the Department of Family and
Community Services, to provide PDR services and other family support services.159 A total of $57
million was allocated to the FRSP program in 2003-4, to provide support services to both intact and
separated families.160 Some of the services funded under this program are also discussed in more
detail below. Mediation services to families are also provided by some State and Territory funded
community mediation centres.

Litigation as a last resort
The family law dispute resolution system provided in Family Court and the FMC161 is structured to
avoid litigation wherever possible and relies extensively on PDR processes to assist the parties to
reach an agreement. PDR can help to reduce the tension and conflict involved in resolving family
disputes and can help parties to come to an agreement without the ‘adversarial, impersonal and
confrontationist atmosphere of the courtroom’.162

Minimising the conflict and confrontation sometimes involved in resolving family law disputes is
especially important when children are involved. Research has shown that unresolved and enduring
parental conflict can ‘violate children’s core developmental needs and threaten their psychological
growth.’163 Ongoing conflict between parents post-separation may also have a strong and negative
influence on children’s adjustment,164 which emphasises the benefits of resolving disputes as early
and as amicably as possible.

Federal legislation concerning family law has always given prominence to the position of children
in family law disputes. That is reflected in section 65E Family Law Act, which prescribes the best
interests of the child as being the paramount consideration for a court when making an order
concerning a child.

The Government’s policy on family law also focuses on the need to resolve disputes without
resorting to litigation wherever possible. Diverting family disputes away from the traditional
adversarial system is important, since ‘families do not have the personal resources, both financial
and emotional, to cope well with the rigours of the adversarial system.’165 This policy is reinforced
in the Family Law Amendment Bill 2003, which strengthens section 63B Family Law Act. This
section encourages parents to agree through parenting plans about matters concerning the child
rather than seeking an order from a court and to regard the best interests of the child as the
paramount consideration when reaching agreement. The amendments will extend this provision to
specifically encourage parents to minimise the possibility of present and future conflict by reaching

159
    For more information on the Family Relationships Services Program, see
     <http://www.facs.gov.au/internet/facsinternet.nsf/family/frsp-family_relationships_service_program.htm>.
160
    $29.7 million from the Attorney-General’s Department and $27.3 million from the Department of Family and
     Community Services.
161
    in its family law jurisdiction
162
    The Hon D Williams AM QC MP, ‘Opening address’, speech delivered at the 6 th National Mediation Conference,
     Canberra, 18 September 2002, viewed September 2003, at <http://www.ag.gov.au/www/attorneygeneralHome.nsf
     /Web+Pages/A3EE7076FFAB3645CA256C3800148215?OpenDocument>.
163
    McIntosh J, ‘Enduring conflict in parental separation: Pathways of impact on child development’ (2003) 9(1) April
     Journal of Family Studies 63 at pp 63-64.
164
    McIntosh above, at p 71.
165
    Attorney-General’s Department, ‘The Delivery of Primary Dispute Resolution Services in Family Law’, August
     1997, viewed September 2003, at <http://agnet.ag.gov.au/www/familylawHome.nsf/Web+Pages/
     D9ED7828C3E010F0CA256C59007E2843?OpenDocument>.



                                                                                                                   154
an agreement and to ‘use the legal system as a last resort rather than a first resort’ when negotiating
a parenting agreement.166

Family Law Pathways report
The Family Law Pathways Advisory Group (the Pathways Group) reported to the Government in
August 2001 on how to ‘achieve a family law system which provides effective support for families;
coordinates client focused information and services; and provides pathways that are effective and
appropriate.’167 The Pathways report contained recommendations directed at government, the
courts, private professionals and organisations working within the family law system. Major
themes of the report were that any future reform to the family law system should reinforce the
principle that the best interests of the child should always come first, and that non-adversarial
dispute resolution should be a priority.168

The Pathways report also highlighted the need for assessment and referral functions to be
incorporated more effectively into the family law system to ‘equip service providers with tools to
help them explain options and guide people to the most appropriate and least adversarial pathway
for managing the separation process’.169 The report identified three generic ‘pathways’ through the
system for separating couples but noted that, in real life, disputes will not necessarily be capable of
fitting into one of the pathways listed below.

The three generic pathways identified in the report are self help, supported and litigation.170 Ideally,
disputants should be encouraged to use the self help and supported pathways, with litigation being
reserved as a last option. The self help pathway would be suitable for parents who have a
relationship which allows them to make parenting decisions without any external help, whereas the
supported pathway would be suitable for parents who may experience difficulties, but would be
capable of managing their separation and parenting responsibilities with appropriate support. The
litigation pathway may be necessary in some cases where parents cannot reach any agreement or
where issues of violence, child abuse or abduction need to be addressed.171 This is effectively how
the family law system operates at the moment, although the Pathways Report shows that there is a
need for much better integration and coordination between its different elements.

Pre-filing PDR
Many post-separation arrangements are already currently made, either by the parties themselves or
with the assistance of lawyers, without proceedings being issued. The use of PDR processes before
parties file proceedings is another way of encouraging parties to resolve their disputes at an early
stage. The early use of PDR allows parties to be counselled about the pitfalls and costs, both
emotional and financial, of proceeding down the litigation pathway. Pre-filing PDR also provides
the participants with a chance to work through any emotional issues and reduce any adversarial

166
    New sections 63B(1)(c) & (d) Family Law Act 1975.
167
    The Hon D Williams AM QC MP, ‘The Pathways vision’, speech at the Pathways Forum: Out of the maze, 19 June
    2003, viewed September 2003, at <http://agnet.ag.gov.au/www/attorneygeneralHome.nsf/Alldocs/
    RWP3FAD1DAED95A9E39CA256D4E00103A9F?OpenDocument>.
168
    Family Law Pathways Advisory Group, Out of the Maze: Pathways to the future for families experiencing
    separation, July 2001, Executive Summary, p xv, available at <http://agnet.ag.gov.au/www/familylawHome.nsf/
    Web+Pages/42C639B967A96E50CA256C2100183DEB?OpenDocument>.
169
    Pathways Report above, p 55.
170
    Pathways Report above, p 55.
171
    Pathways Report above, p 55.



                                                                                                            155
attitudes they hold, allowing them to take a more collaborative approach to negotiating an
agreement.

Accordingly, as mentioned, the Government funds a number of services through the FRSP aimed at
assisting parents to resolve disputes quickly, and in a way that minimises ongoing conflict. Those
services include counselling, mediation and conciliation services as well as the Men and Family
Relationships program,172 which offers services designed to assist men to manage a range of
relationship issues with partners, ex partners and children. Family relationships counselling173
helps individuals, couples and families, including separating families, to resolve relationship
problems that arise at various states of their lives. Family relationships mediation174 assist
separating couples to reach agreement on matters including parenting, care and residence of
children, and finances and property. Conciliation services175 assist separated parents to agree on
parenting arrangements rather than going to court. Regional PDR services176 also provide a range
of services to people in regional areas to help separating families resolve disputes.

Pre-filing counselling is also provided by the Family Court in regional areas of Australia.
Following a review conducted by the Family Court in 2000, the Court decided to no longer conduct
pre-filing counselling in metropolitan areas.177

Legal aid commissions and PDR
To promote the use of PDR in family law matters, the Government has included a clause in the
Commonwealth priorities for legal aid178 requiring consideration to be given to resolving family law
disputes by using a PDR method. This means that applicants for legal aid should, in most
circumstances,179 attempt to resolve the dispute using PDR before a grant of legal assistance will be
made for court proceedings.180

Primary dispute resolution services are being provided by Legal Aid Commissions (LACs)
throughout Australia. An evaluation of these services concluded that early intervention conferences
can be very effective in certain circumstances, but not where the issues were insufficiently defined,




172
    For more information on the Men and Family Relationships program, see:
    <http://www.facs.gov.au/internet/facsinternet.nsf/family/mfr-men_family_relationships.htm>.
173
    42 organisations are funded to provide such services. $19.1 million is allocated to this program for the 2003-2004
    financial year.
174
    17 organisations are funded to provide such services. $5.7 million is allocated to this program for the 2003-2004
    financial year.
175
    7 organisations are funded to provide such services. $1.7 million is allocated to this program for the 2003-2004
    financial year.
176
     25 organisations are funded to provide such services. $2 million is allocated to this program for the 2003-2004
    financial year.
177
    Foster R, ‘Triage in Family Court services: Doing more with less’, speech to AFCC 39 th Annual Conference,
    Hawaii, 5-8 June 2003, viewed September 2003, at <http://www.familycourt.gov.au/papers/pdf/foster.pdf>.
178
    Attached to the legal aid agreements between the Commonwealth and each State and Territory.
179
    Situations where PDR is usually not appropriate are set out in clause 2(13) of the Commonwealth priorities and
    include where there are investigations or proceedings about child abuse, where there is a history of violence,
    intimidation, control or coercion, where there is clear evidence establishing the refusal or unwillingness of one party
    to attend or where there are practical difficulties which cannot be overcome such as the geographical distance
    between the parties or the non-availability of a PDR process in the area.
180
    Commonwealth priorities, clause 2(8) and 2(10).



                                                                                                                       156
the parties were too emotional or there was inadequate time for investigation and preparation before
the conference.181

An amount of $3.071 million over three years was included in the 1999-00 Budget, to increase the
availability of primary dispute resolution services through LACs. These funds enabled LACs to
implement a range of innovative initiatives and explore new approaches to the delivery of primary
dispute resolution services. Further funding of $1 million a year over four years was provided in
the 2002-03 Budget measure ‘Keeping people out of courts’ to support primary dispute resolution
services in LACs. The initiative was funded to reinforce the Commonwealth’s policy that more
family law disputes should be resolved through non-litigious means.

The primary dispute resolution services offered by LACs have the potential to be expanded, both
geographically and in terms of the amounts and types of services available. Legal aid commissions
recently submitted proposals for either the expansion or continuation of an existing primary dispute
resolution program, or the development of a new primary dispute resolution program. The
Attorney-General approved the following allocation of funds for the first two years of this initiative:


Legal Aid Commission                2002-03              2003-04

Queensland                          $135,580             $210,000

Western Australia                   $432,506             $380,000

ACT                                 $116,914             $100,000

Northern Territory                  $90,000              $80,000

Tasmania                            $100,000             $105,000

South Australia                     $125,000             $125,000

Total                               $1,000,000           $1,000,000


This funding is enabling Legal Aid Western Australia to expand its existing PDR services into
major regional centres in Western Australia by means of a monthly circuit. Victoria Legal Aid has
also previously received Commonwealth funding, which will be used to open a Family Law
Primary Dispute Resolution Service, to ensure that clients have access to appropriate pre-filing PDR
services.182 Similarly, the Legal Aid Commission of New South Wales has used Commonwealth
funding from previous years to establish an Aboriginal and Torres Strait Islander Family Mediation
pilot project designed to meet the needs of Indigenous Australians by setting up a method of
resolving disputes which is compatible with Aboriginal culture.183




181
    Melville A, Hunter R and Giddings J, Phase one of a national evaluation of primary dispute resolution programs in
    legal aid commissions, Socio-Legal Research Centre Griffith University and Justice Research Centre, Law
    Foundation of New South Wales, November 2000, Executive Summary p xix.
182
    Victoria Legal Aid, ‘Primary Dispute Resolution Service’, 3 December 2002, viewed September 2003,at
    <http://www.legalaid.vic.gov.au/main1.cfm?CategoryID=9&TopicID=265>.
183
    For further information about the Aboriginal and Torres Strait Islander Family Mediation project, see
    <http://www.lawlink.nsw.gov.au/lac/lac.nsf/pages/atsifam_brochure>, viewed October 2003.



                                                                                                                  157
PDR during proceedings
Family law disputes that do result in legal proceedings are, by definition, those involving
reasonably high levels of inter-personal conflict. The ability of the law to provide an appropriate
and long lasting solution in a frequently hostile or violent environment can be restricted.184 The
courts can only go so far in terms of ensuring that, particularly in cases involving children, parties
act reasonably. In the emotionally fraught circumstances of many family law disputes, the
emphasis also needs to be on other ways of influencing attitudes and behaviour.

The Family Court has adopted three phases in its case management system: prevention, resolution
and determination. PDR is a major feature of the resolution phase, with the prevention phase aimed
at providing information and assistance to help parties avoid conflict, and the determination phase
dedicated to preparation for, and the conduct of, a trial. Mediation is sometimes used in the
prevention phase to assist families to resolve disputes involving children, however most of the PDR
services available are used by the Court during the resolution phase.185

Once parties have filed proceedings in the Family Court, they are required to attend an information
session which outlines, amongst other things, the PDR options open to the parties. Following this
information session, the parties will then generally attend a case assessment conference which aims
to identify and narrow the issues in dispute and provides an opportunity for parties to settle the
dispute with the assistance of a registrar or mediator.186

If an agreement is not reached at the case assessment conference, the parties may be referred to a
form of PDR or they proceed to a directions hearing. Some of the PDR options for the registrar to
consider at either the case assessment conference or the directions hearing are:187
         mediation (children’s cases)
         conciliation conference (financial cases)
         joint conference (children and financial cases)
         arbitration (financial cases)
         judicial settlement conference
         parenting after separation group
         mediation and relationship counselling, and
         facilitating contact program.

If the matter is still not resolved it is likely to proceed to the determination phase, although a
registrar who feels that the matter is close to resolution, may return the matter to the resolution
phase by adjourning it to another conference or directions hearing.188

In the FMC, most children’s matters are referred to a mediation conference pursuant to section 62F
Family Law Act by orders made by registry staff before the parties appear before a federal

184
    Family Court of Australia, Submission to the Standing Committee on Family And Community Affairs Inquiry into
    joint custody arrangements in the event of family separation, 2003, pp 2 & 12, viewed September 2003, at
    <http://www.aph.gov.au/house/committee/fca/childcustody/subs/sub0751.pdf>.
185
    Family Court, Case management directions, pp 7-13.
186
    Family Court, Case management directions, direction 5.4, p 15.
187
    Family Court, Case management directions, direction 5.5.3, p 17.
188
    Family Court, Case management directions, direction 5.6.3.



                                                                                                              158
magistrate. At the first court date in the FMC, the federal magistrate may also order the parties to
PDR. The FMC also has the same range of PDR referral options as the Family Court. Some of the
PDR services utilised by the FMC are provided by Family Court staff, although community based
organisations are also used for the delivery of some PDR services on a fee-for-service basis.

A substantial number of matters referred to PDR by the courts settle during that process. In
2002-03, the Family Court resolved 72% of all matters by PDR, 69% of which settled within six
months of filing.189 The Family Court has indicated that only 36% of matters proceed from the
resolution phase to the determination phase and only 6% of cases are heard to judgment.190

The number of referrals from the FMC to community based organisations for PDR services,
including counselling, mediation, and property conciliation services, has increased by 59% from
611 referrals in 2001-02 to 972 referrals in 2002-03, with an overall settlement rate of 23%, with
many more matters then settling before the next court date.191

Child-focused practice initiatives
The Pathways report found that the family law system has a limited capacity for dealing with the
effects of divorce and separation on children and that, despite the development of some
child-inclusive counselling and mediation services, more child-focused practices should be
incorporated into the system.192 The Pathways report also recommended that access to services
aimed at supporting children in separating families should be expanded.193

Enduring parental conflict and disputes can have an ongoing and negative effect on children. The
primary goal of dispute resolution should therefore be to decrease the likelihood of parents
engaging in ongoing conflict. Services need to be directed at providing parents with ‘multiple
opportunities and forums to settle their parental disputes knowledgably, efficiently, and
satisfactorily, and to exit the adversarial system at the earliest point possible.’194 This may be
achieved by alerting and sensitising parents to the needs of their children, teaching them how to
separate their own adult and parenting needs from the needs of their children, and focusing on
establishing relationships and parenting plans which will minimise conflict and provide continuity
and stability.195

The Government has been involved in designing professional development programs for
counsellors, mediators and family law practitioners to promote child focused practice and
encourage the development in these professionals of skills for achieving child sensitive
outcomes.196 One of these programs, ‘Changing the face of practice’, aimed to assist legal

189
    Family Court, Annual Report 2002-03 p 29.
190
    Family Court, Part B of submission to Standing Committee on Family and Community Services Inquiry into Joint
    Custody Arrangements in the Event of Family Separation (Statistical Analysis), 2003, p 5.
191
    Federal Magistrates Court, Annual Report 2002-2003 pp 36-37.
192
    Family Law Pathways Advisory Group, Out of the Maze: Pathways to the future for families experiencing
    separation, July 2001, Executive Summary, pp 11-12, at <http://agnet.ag.gov.au/www/familylawHome.nsf/
    Web+Pages/42C639B967A96E50CA256C2100183DEB?OpenDocument>, viewed September 2003.
193
    Family Law Pathways Advisory Group, as above, recommendation 7(a), p 36.
194
    Kelly J, ‘Parents with enduring child disputes: Multiple pathways to enduring disputes’ (2003) 9(1) Journal of
    Family Studies 37, p 39.
195
    See Kelly above, p 39.
196
    Government response to the Family Law Pathways Advisory Group Report, May 2003, p 12, viewed October 2003,
    at <http://www.ag.gov.au/www/budgethome.nsf/Web+Pages/68F31FA73CAC8436CA256D2300245EA0
    ?OpenDocument>.



                                                                                                               159
practitioners to acquire the skills to assist clients and the court to determine what course of action
will be in the best interests of the child, know what role they can play to support the child when the
parents are in a high conflict relationship and know what other dispute resolution options may be
appropriate in the circumstances.197

The program encountered some problems due to the small proportion of family law practitioners
who attended, and the fact that most of the practitioners who did attend already had a strong child
focus in their work. The program appears not to have attracted the practitioners who needed it
most. Further professional development programs need to be developed in conjunction with a
strategy to target lawyers who ‘may be identified as needing to improve their ability to be child
focused in family disputes’.198

Another professional development program, ‘Children in Focus’, was aimed at mediators,
conciliators and counsellors who were working in the area of family dispute resolution. This
program aimed to ‘raise awareness of the centrality of children in family disputes … and to promote
pathways for achieving child-sensitive outcomes at various points of contact with parents during
separation.’199 This program attracted much interest and, due to its success, was extended beyond
its initial completion date into 2003.200 The success of the ‘Children in Focus’ program indicates
that there is a demand amongst PDR providers for programs which focus on how to develop child
inclusive practices.

Post-order PDR
The Pathways report found that many people were ‘unhappy with the decisions made at the point of
separation, when emotional and, often, financial pressures made it difficult to focus.’201 Parenting
arrangements must be flexible and capable of changing over time according to the needs of children
and other circumstances. Parents may require ongoing support and counselling to help them to
meet their responsibilities under their parenting plan or court order, as well as adapt the
arrangements as circumstances change.202

Preventing matters from returning to the court system after an agreement has been made or the court
has made orders is one way to reduce the pressure on the system. This may be achieved by
identifying as many potential issues as possible at the time an agreement is made. However, this is
not always practicable. The provision, if required, of ongoing support, counselling and education
would play an important role in teaching parents how to live with, and manage, their parenting and
contact arrangements, and adapt them to suit changing circumstances.203 Such initiatives may assist
in reducing the number of breaches of parenting agreements or orders and hence limit the number of
cases which return to the court.



197
    Moloney L and Webb N, ‘Child-focused development programs for family dispute professionals: Recent steps in the
    evolution of family dispute resolution strategies in Australia’ (2003) 9(1) Journal of Family Studies 23 at p 31.
198
    Moloney and Webb, above, at p 31.
199
    Children in Focus, ‘Overview of program’, viewed September 2003, at
    <http://www.childreninfocus.org/program.html>.
200
    Moloney and Webb, above, p 34.
201
    Family Law Pathways Advisory Group, Out of the Maze: Pathways to the future for families experiencing
    separation, July 2001, p 48, viewed September 2003, at <http://agnet.ag.gov.au/www/familylawHome.nsf/
    Web+Pages42C639B967A96E50CA256C2100183DEB?OpenDocument>.
202
    Family Law Pathways Advisory Group Report, above, p 49.
203
    Family Law Pathways Advisory Group Report, above, recommendation 15, p 52.



                                                                                                                 160
Since its inception, the FMC has been referring matters to counselling following final orders,
especially where the federal magistrate perceives that the parties will have difficulties coming to
terms with their orders. This also puts parties in contact with agencies in their communities that can
help them to resolve problems with their orders, rather than returning to court to vary the orders or
to seek action for a contravention of the orders. In 2002-03, the FMC referred 127 matters to post-
order counselling.204

The Government has provided funding for new programs to help separated parents resolve their
disputes and establish contact arrangements for their children without continuously resorting to the
court system. One of these projects is the Contact Orders Program, referred to in the Pathways
report when still in its pilot form,205 which attempts to address ‘the needs of families struggling with
the emotional and practical consequences of family breakdown’.206 The program educates high
conflict couples on how to manage their child contact arrangements more amicably to ensure the
ongoing involvement of both parents in the care of the children.207 The Government has now
provided ongoing funding for this project and it is being expanded, with two new services being
established and one of the existing services being given a wider geographic coverage.208 The
feedback from the Contact Orders Program indicates that 88% of participants achieved a positive
outcome from participating in the program.209

Children’s contact services also play an important role in facilitating ongoing contact between
parents in a high conflict relationship and their children. Children’s contact services assist
separated parents who are not able to independently manage their parenting arrangements by
facilitating safe contact with, or handover of, children. By providing safe, appropriate and managed
opportunities for contact and changeover of children, and referrals to other appropriate services to
assist with conflict between parents, the additional services should also assist in reducing the
numbers of parents contesting breaches of contact orders. A total of 35 contact services have been
established to date to meet the growing demand for access to these services and to reduce delays
and waiting times.210

Better coordination of PDR services
The focus on encouraging the use of PDR as the first option to resolve a family law dispute has the
potential to be undermined by a lack of both coordination of PDR services and a lack of knowledge
in the community of the content of, and differences between, PDR methods.211 There is also some
confusion about terminology relating to PDR services due to the fact that different service models
have evolved in different climates and environments. A PDR Survey conducted by the FMC in

204
    Federal Magistrates Court, Annual Report 2002-03, p 40.
205
    Family Law Pathways Advisory Group Report, above, p 44.
206
    Government response to the Family Law Pathways Advisory Group Report, May 2003, p 11, viewed October 2003,
     at <http://www.ag.gov.au/www/budgethome.nsf/Web+Pages/68F31FA73CAC8436CA256
     D2300245EA0?OpenDocument>.
207
    Government response to the Family Law Pathways Advisory Group Report, above, p 11.
208
    Attorney-General’s Department, Portfolio Budget Statements 2003-04, April 2003, p 37, viewed September 2003, at
     <http://agnet.ag.gov.au/www/budgetHome.nsf/csmAttachments/Part-C-1-AGD-11-May-V5-
     pdf/$file/Part+C+1+AGD+11+May+V5.pdf>.
209
    Attorney-General’s Department, ‘The Contact Orders Program: a summary of the independent evaluation of the
     Contact Orders Pilot July 2000 to April 2002’, 2003, para 2.
210
    Attorney-General’s Department, Portfolio Budget Statements 2003-04, April 2003, p 37, viewed September 2003, at
     <http://agnet.ag.gov.au/www/budgetHome.nsf/csmAttachments/Part-C-1-AGD-11-May-V5-
     pdf/$file/Part+C+1+AGD+11+May+V5.pdf>.
211
    Family Law Pathways Advisory Group Report, above, p 40.



                                                                                                               161
2002-03 indicated that many clients did not understand the process of PDR and that the generic use
of the term ‘counselling’ caused confusion for clients.212

The Attorney-General’s Department is currently reviewing the PDR provisions of the Family Law
Act. One aim of the review is to bring greater consistency to the use of PDR terminology in family
law matters. The development of the new quality framework for the Family Relationships Services
Program will also take into consideration the need for greater consistency in the use of PDR
terminology.

It is important that the parties, and their legal representatives, know what to expect from a particular
PDR service. However the current terminology does not make it easy to determine from its name
exactly what a service offers. As the Pathways report stated: 213

      Definitions need to be developed and made available in language which accurately and clearly
      describes services so that clients understand what is offered, what the service can do for them
      and what is most suited to their needs. They need to understand the options available to them
      and the consequences of their choices, such as the likely pathway to which the option would
      lead, and cost. This would better enable people to investigate non-adversarial services and
      interventions at an early stage.

This point is equally relevant for legal practitioners who may be considering whether or not to refer
clients to PDR services. They will need reliable and accurate information on what a particular PDR
service offers before referring a client, as they need to ensure that a referral will lead to a good
outcome.214 Some family law practitioners may be reluctant to refer matters to community
providers because they do not know the service providers and may be concerned about the quality
of the services provided.215 Improved communication between service providers and the legal
profession may increase the confidence of the legal profession in the capacity of PDR methods to
resolve disputes, and hence increase the likelihood that more disputes will be referred to PDR
services in the future.

The Law Council of Australia and the Attorney-General’s Department have jointly funded the
employment of a PDR liaison officer, to act as a liaison between the legal profession and
community counselling organisations and encourage greater use of community providers for
pre-filing PDR. The PDR liaison officer has convened meetings between key stakeholders to
develop strategies to increase the number of parties referred to PDR services by lawyers and is
organising interactive workshops between the private profession and community organisations. She
has also provided feedback to the Attorney-General’s Department on issues such as standards for
PDR practitioners and on the needs for legal practitioners for access to information about
community based services.216

In 2001, the Attorney-General’s Department funded seven partnership pilot programs to develop
integrated and collaborative approaches to promote the early use of PDR services in the community.
These partnerships were established in Adelaide, Ballarat, Canberra, Coffs Harbour, Hobart,
Melbourne and Perth. More recently, the Department has provided one-off seed funding for local
networks in each State and Territory. In some cases these arose from the previously funded

212
    Federal Magistrates Court, Annual Report 2002-03, pp 39-40.
213
    Family Law Pathways Advisory Group Report, above, p 40.
214
    Family Law Pathways Advisory Group Report, above, p 40.
215
    Quinn S, PDR Liaison Officer, Law Council of Australia, Half-yearly progress report to Attorney-General’s
    Department, 14 August 2003.
216
    See Quinn above.



                                                                                                                162
partnership projects. In others they have been established as a response to the Pathways Report and
its vision of a more integrated family law system. The networks include community based service
providers, the Family Court, the FMC, government service providers such as the Child Support
Agency and in some places community legal services and legal aid commissions.

The Government has also been working with non-government service providers to produce
coordinated information about the family law system and has released the brochure ‘My family is
separating – what now?’, the booklet ‘Me and my kids – Parenting from a distance’ and established
the Relate website,217 which provides user-friendly information on relationships, parenting, divorce
and links to service providers. Family Law Online218 is another important service which provides
information about the family law system along with the contact details of dispute resolution service
providers. Family Law Online is discussed further in Chapter 3.

The Government has indicated that it believes that the Pathways report provides the family law
sector with a clear direction for change in future years. To ensure that momentum is maintained at
the Commonwealth level, the Government's Family Law Pathways Taskforce, jointly chaired by the
Attorney-General's Department and the Department of Family and Community Services, is
continuing to coordinate implementation of Pathways initiatives. In consultation with stakeholders,
the Taskforce also intends to develop a coordinated and consistent policy framework for the future
delivery of services for separating families and families in conflict.219


CONCLUSION
Considerable efforts are already being made within the federal civil justice system to ensure that
disputes are prevented from escalating wherever possible, and are resolved at the lowest possible
level, particularly in the family law arena. The leadership being shown by the Law Council and
some of its constituent bodies in this area is commendable. In the family law area, assisted by the
momentum of the Pathways Report, the courts, government and community providers are exploring
more effective means of assisting families to resolve the complex and emotional issues that arise
from the breakdown of parental relationships. Additionally, the federal courts are considering new
ways of handling litigation to assist litigants to resolve their disputes in a more satisfactory and cost
efficient manner.

However, there is still room for improvement, both in terms of attitudinal change and of putting in
place more effective mechanisms to encourage the early resolution of disputes. It will remain
essential for all players in the federal civil justice system at all levels to work together to achieve
these improvements.




217
    At <http://www.relate.gov.au> (viewed November 2003).
218
    At <http://www.familylaw.gov.au/accesspoint> (viewed November 2003).
219
    The Hon Daryl Williams AM QC MP, Speech to Pathways Forum: Out of the Maze: Steps Towards an Integrated
    Family Law System, 19 June 2003, viewed October 2003 at <http://agnet.ag.gov.au/www/attorneygeneralHome.nsf/
    Web+Pages/3FAD1DAED95A9E39CA256D4E00103A9F?OpenDocument>.



                                                                                                            163
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