1010

A Joint Project of…Australian Dispute ResolutionAssociation Inc. (ADRA)South Australian DisputeResolution Association(SADRA)Victorian Association forDispute Resolution (VADR)

IN THIS ISSUE

In September this year, a Symposium was opened byDame Roma Mitchell in celebration of the tenth anni-versary of the South Australian Dispute ResolutionAssociation. Over a decade ago there was a groundswellof interest in mediation in South Australia, in part asan outcome of a series of mediation workshops con-ducted by the UniSA, leading to a demand for a for-mal Association. At the time, Dame Roma Mitchellwas a source of support and inspiration, and kindlyagreed to open our first meeting. We are honouredthat 10 years later, after an extremely successful andbusy term as Governor of South Australia, she agreedto share her views of the changes that have occurred indispute resolution over the decade. This edition of Me-diation News will provide readers with an opportunityto read her paper and a sample of other papers pre-sented on the day. All papers presented at the Sympo-sium will soon be available on the following WWWsite - http://www.humanities.unisa.edu.au/cmrg/Ten years ago, when we were canvassing for interest inthe formation of the new Association, I recall the Deanof the Adelaide University Law School asking me if wewere “for or against lawyers”. Initially the aims of theassociation may have posed a threat to some membersof the legal community. However, I am pleased to saythat many members of the legal profession have beenactive members of SADRA, some playing an impor-tant role on the management committee and in thepromotion of mediation as a viable process for resolv-ing some disputes.

From the outset, the SADRA committee were mind-ful to include all interested groups in our membershipand ongoing activities, including the Institute of Arbi-trators and LEADR. I believe we have been one of thefew States in Australia to maintain cooperation betweenthe various groups interested in ADR.

SADRA has provided an opportunity for people frommany different disciplines to come together to exploredifferent approaches to conflict management and dis-pute resolution. In 1991, we convened a conference atthe invitation of the former State Attorney-General, toadvise on changes to legislation. In 1993, we organ-ised the first National Family Mediation Conference,and in 1996, the Second International Mediation Con-ference – which focused on Mediation and CulturalDiversity.

The University of SA has played an important role insupporting SADRA through the Research Group forMediation Studies (now called the Conflict Manage-ment Research Group). I would like to take this op-portunity to acknowledge this support and to also thankthe newly formed Hawke Institute, which through theservices of Ann Braybon played a vital role in organis-ing the Symposium.

th Anniversary Symposium for SADRA

SADRA has forged strong links with all three universi-ties in Adelaide and has therefore had a major influ-ence on changes to the content of undergraduatecourses, particularly social work and law. In 1993, theUniversity of SA, in conjunction with the University ofAdelaide, established one of the first post-graduatecourses in family mediation in Australia, which has con-sistently attracted around 30 students a year, many frominterstate. This year, UniSA has introduced a GraduateDiploma in Conflict Management and a Master ofConflict Management, which have attracted a great dealof interest from many post-graduate students from di-verse backgrounds from interstate and overseas.

At the national level SADRA committee members areserving, or have served, on three national councils whichadvise the Federal Attorney-General on ADR; the Na-tional Alternative Dispute Resolution Council, the Fam-ily Services Council and the Family Law Council. Manychanges have occurred in family law in the past decade— mediation, conciliation and arbitration are now calledprimary dispute resolution processes — no longer “al-ternative”. As inaugural Chairperson of the FSC I wasresponsible for coordinating and writing the first set ofFamily Mediation Standards for agencies funded by theCommonwealth Attorney-General’s Department, andfor mediators employed by them. This exercise waschallenging and brought together leading mediatorsfrom across Australia.

At the Symposium we heard from speakers from manydifferent fields of practice. Their papers reflected onthe contributions SADRA members, individually andcollectively, have made to the significant changes thathave occurred in approaches to dispute resolution inSouth Australia. Frustration was also voiced, however,at the many barriers that have impeded change, in par-ticular the adversarial nature of our institutions whichhas influenced community attitudes. Associate Profes-sor John Murray (who many of you know from hisearlier role as Assistant Commissioner in the SA PoliceDepartment) has been an active member of SADRAfrom the beginning and flew from Sydney to summa-rise the themes in the plenary at the end of the day. Hepicked up two themes - “optimism and frustration”.He also highlighted the need for ongoing research andeducation of the community.

My heartfelt thanks to the members of SADRA who havebeen loyal and supportive over the past 10 years, espe-cially to those who have played an active role on themanagement committee, I cannot name them all. PamSmith and John Steele have been diligent Treasurers,and as editors, Virginia Leeuwenberg and John Con-nell have worked tirelessly to ensure that our contribu-tions to the Mediation News eventuate. There are manyothers, who have also made major contributions.

Dale Bagshaw, Chairperson, SADRA• Frustration And

Encouragement

• “CommunityMediation in a Rights,Conscious Era”

• The First 10 Years ofMediation in SouthAustralia

• Conflict ManagementResearch Group, Uniof SA

• Courses & Training

2

Mediation News – December 1998

PP

Speakers Titles of papersBagshaw, Dale Chairperson of South Australian Dispute Resolution Association

Aims of the symposium

Brebner, Judge Don Mediator sponsored by the Supreme and District Courts

Paper: ADR in the common law courts?

Harrison, Pamela Senior Solicitor and Family Law Mediator at the Marion Community LegalService

Paper: Peer mediation in schools

Hodgson Fellow of the Royal Australian Planning Institute and Honorary Fellow of theAustralian Institute of Commissioner JohnUrban Studies.

Paper: The role of mediation in environmental dispute resolution

Hutchings, Dr Suzi Social anthropologist in areas of juvenile justice, criminal justice, family law cases,native title and Aboriginal heritage.

Paper: Translations in Cultural Meanings: The challenge of presenting expert an-thropological evidence in criminal courts, juvenile justice systems and the FamilyCourt in South Australia.

Jenkin, David Mediator with Relationships Australia and Vice Chair of the Board of Directors ofLEADR.

Paper: ADR in commercial disputes

Jennings, Senior Judge William Senior Judge of the Industrial Relations Court of South Australia and President ofthe Industrial Relations Commission of South Australia.

Paper: From institutions to the individual

Kitcher, Jan Senior Program Manager with the Justice Strategy Unit and previously SeniorYouth Justice Coordinator with the Family Conference Team.

Paper: Family Conferences: Assessing ‘Success’

Mitchell, Dame Roma Patron of the Bob Hawke Prime Ministerial Centre, University of SouthAustralia, first woman as Governor of South Australia 1991-96 and first womanto be awarded QC.

Opening Address

Murray, Associate Professor John Graduate School of Police Management of the Charles Sturt University.

Plenary Session: Preparing for the future

Prior, Anne Director of Services, Relationships Australia (SA).

Paper: If at first you don't succeed

Steele, John Training and Development Officer for the Community Mediation Services of SouthAustralia.

Paper: Community mediacation in a rights-conscious era

apers Presented at SADRA’s 10th Anniversary SymposiumTen Years of Dispute Resolution: Preparing for the New Millenium

To celebrate the tenth Anniversary of the South Australian Dispute Resolution Association, a Symposium - Ten Years of DisputeResolution: Preparing for the New Millennium was hosted by the Research Group for Mediation Studies and the Hawke Insti-tute at the University of South Australia, Magill Campus, September 1998. Some of the papers from this Symposium have beenselected for this edition of Mediation News. Other papers will be reproduced in later editions.

3

Mediation News – December 1998

It is almost 15 years since I retired fromthe Bench of the Supreme Court of SouthAustralia. During the 18 years of my serv-ice as a Supreme Court Judge there wasconsiderable concern at the increasingcosts of and the delays in litigation. Vari-ous attempts were made to stem the ris-ing tide of both but as has been demon-strated clearly in the years since my re-tirement, all to no avail. What has beenhailed as a measure to ensure speediertrials or lessen costs or both has some-times been proved to have little effect.As an example, I recollect a recommen-dation of the South Australian CriminalLaw and Penal Methods Reform Com-mittee which I chaired from 1971-1977.The recommendation was to the effectthat as a general rule witnesses in com-mittal proceedings should not be re-quired to give oral evidence but shouldgive evidence by affidavit, thus savingconsiderable court time and lesseningdelays. That recommendation wasadopted in due course but, on investiga-tion, I discovered that many delays con-tinued. The delays were now in obtain-ing the affidavits which entailed morepolice work than was necessary when thepolice investigating a matter obtained astatement from a witness and supplied itto the prosecution branch. Preparing af-fidavits and having them sworn appar-ently led to substantial delays in somematters.

And so it has been with many reforms inlegal procedure. Some have succeeded inthe reduction of delay and of costs inparticular areas. But both continue toescalate. In particular some commercialcases have occupied the time of the courtsto an extent which was unheard of in mytime on the Bench. I could not have en-visaged an action, the time for trial ofwhich had to be reckoned not in weeks,nor even months, but years. And so it issmall wonder that the Australian and NewZealand Council of Chief Justices hasdetermined that court annexed media-tion, whether compulsory or voluntary,must be part of a State provided mecha-nism for the resolution of disputes.

This is a clear advance by the courts inalternative dispute resolution since I wasguest speaker at the meeting in 1988when SADRA was formed. Those whowere responsible for its inception and itsincorporation in 1989 (and I make no

ADRA SYMPOSIUM - OPENING ADDRESSDame Roma Mitchell

apology for mentioning Dale Baghaw asbeing in the foreground then and today)realised that the aim of the association topromote social justice and harmonythrough the increased use of cooperativeapproaches to dispute resolution at alllevels of society, could be achieved onlyby education, training and research.

Now, years later, it is fitting that this Sym-posium is being held. When I attendedthat inaugural meeting I certainly did notbelieve that alternative dispute resolutionwould spread as widely as it has. Thecourts had for long been accustomed toarbitration which had the imprimatur oflegislative recognition. Conciliation, in-cluding compulsory conciliation, was abulwark of industrial law and conciliationwas a pacifier for those who opposed lessstringent divorce laws as far back as SirGarfield Barwick’s days as Common-wealth Attorney-General when his Mat-rimonial Causes Bill placed emphasis onconciliation. But mediation was a rela-tively new concept.

Now the South Australian SupremeCourt Act provides that a Judge may, withor without the consent of the parties,refer a civil proceeding or any issues insuch a proceeding, to a mediator. Thisprovision is similar to those adopted inthe Federal Court and the SupremeCourts of Victoria and Western Australia,whereas the Supreme Courts of the ACTand New South Wales refer a matter to amediator only where there is consent ofboth parties. If there is not consent to acourt ordered mediation it may be a caseof “Pity the poor mediator”. If he or sheacts in the completely neutral mannerwhich “mediation” implies there is likelyto be a stalemate. But it appears that“mediation”, when imposed by the Courtunder its legislative power, may postu-late a more invasive procedure.

This is recognised in the draft positionpaper promulgated by the Council ofChief Justices of Australia and New Zea-land. In the paper reference is made tothe distinction in the Family Court be-tween mediation and other alternativedispute resolution processes. It is said,however, that “in most, if not all othercourts, mediation is used as an all em-bracing term to describe a number ofprocesses that may range from the puristmodel to compulsory and directive proc-

esses aimed at defining the issues in dis-pute between the parties to the process,identifying for both parties and the Courtsubstantive and procedural difficultiesthat may be faced in the presentation ofany litigation as well as resolving the par-ticular dispute without resort to litiga-tion”.

It is recognised, therefore, in the draftdiscussion paper that although court or-dered mediation may not, in itself, de-termine the issues in the litigation it maymore clearly define the issues and so limitthe questions to be decided by the court.Questions of law should not be the sub-ject of mediation in whatever sense thatword is used. Parties may be willing toproceed to mediation upon an acceptancethat a statement as to the law applicableis correct, but they should never be calledupon to accept the mediator as appro-priate to declare the law, however emi-nent in the legal profession the mediatormay be. Our system of justice is fashionedupon the basis that it is the prerogativeof the courts alone to interpret the lawwith authority, whether it be common lawor statute law and it is, in my view, essen-tial that the courts retain that authority.

The NADRAC ADR Definitions Paper,produced mainly to assist NADRAC(which everyone here except a tyro likeme will know well as the National Alter-native Dispute Advisory Council) in ad-vising the Federal Attorney-General, con-tains a number of definitions and expla-nation of terms used in alternative dis-pute resolution. In relation to mediationthey range from therapeutic mediation toexpert determination and are doubtlesswell known to those who have studiedconflict resolution through courses suchas those taught at the University of SouthAustralia. The paper emphasises that themediator has no advisory or determina-tive role. The determinative role in alter-native dispute resolution may, however,be given to an adjudicator whose deci-sion is enforceable by a court or, in someinstances, a tribunal.

The development of courses in alterna-tive dispute resolution has occurredthroughout the life of SADRA and therehas been a close cooperation between theUniversities in South Australia and theAssociation in the presentation and pro-motion of the courses. The Research

S4∆

4

Mediation News – December 1998

Group for Mediation Studies at the Uni-versity of South Australia is closely in-volved in SADRA’s activities. It is nowclearly appreciated that training is a ne-cessity for effective mediation. The LawSociety of South Australia has recognisedthis necessity in approving courses whichwill lead to accreditation of persons asmediators.

There is a danger that alternative disputeresolution services will be regarded asappropriate to be used only after litiga-tion has begun and, indeed, usually whenthe matter has been listed for hearing.There is a further danger that court or-dered mediations may be seen only as adevice to enable the courts to controltheir lists and to cut the costs of litiga-tion. Certainly court controlled or sug-gested mediation or conciliation is gen-erally not feasible until proceedings havebeen instituted, although the FamilyCourt is able to provide counselling andmediation services before proceedingshave begun. In Family Court mattersthere is, however, no court mediation orconciliation which will lead to reconcili-ation of the parties or deal with issuesother than those which are peripheral tothe primary issues. As a young legal prac-titioner I was engaged fairly heavily inwhat is now called Family Law. Some ofus in the legal profession claimed that wehad considerable success in what was thenreferred to as reconciling the parties be-fore disputes reached a point of no re-turn. But we knew that once court pro-ceedings had been instituted that pointhad, almost inevitably, been passed. Itseems to me that this is an area fit for

mediation or conciliation, but how canthe parties be persuaded to undertake it?Perhaps the session on Family Mediationwill offer some advice on this matter.

In commercial disputes there is a grow-ing use of mediation before litigation.Some commercial agreements have me-diation clauses which have superseded orbeen added to the erstwhile arbitrationclause. If mediation is successful the par-ties have the satisfaction of lessening de-lay in settlement of the dispute and elimi-nating court costs, although in some casesthey incur substantial costs not only inthe payment of a mediator but also inproviding the facilities for mediation.Such costs may far exceed the costs of “aday in court”. It is probably too soon foran authoritative evaluation of the prosand cons of mediation to the consumerin cost terms.

This Symposium will cover alternativedispute resolution in a number of fieldsin addition to those which I have men-tioned. Its use in the juvenile justice sys-tem by way of a Family Conference is awelcome addition to the strategies avail-able in dealing with youth delinquencies,and the session on such conferences istimely. Throughout my long associationwith the legal system in South Australia Ihave seen different experiments in deal-ing with young offenders. None has hadoutstanding success. Let us hope that thenew system, which has much to recom-mend it, will fare better.

Environmental issues are liable to arousethe passions of people who in all otherrespects are peaceful and accommodat-

ing citizens. The protagonists take up en-trenched positions from which it is almostimpossible to dislodge them. Usually,however, there is a middle ground whichwill give at least partial satisfaction to eachintransigent side. Here is surely a fertilefield for alternative dispute resolution.The sessions dealing with environmentand with community disputes will, Ihope, disclose that mediation can be suc-cessful in both.

It is satisfactory to know that peer me-diation in schools is at least on the hori-zon. Perhaps it is alive and flourishing.The members of the Symposium will havean opportunity to learn how successful itis. Apart from the immediate benefits ofsuch mediation there is the bonus for thecommunity that if children and youngpeople learn the value of mediation whilethey are still at school they are likely toappreciate its uses as they grow older.

As I said earlier in my speech we havelong been accustomed in Australia toconciliation and arbitration in industrialrelations. Indeed I believe that we havebeen world leaders in that field. It is goodthat Senior Judge Jennings will speak onthat important topic. And we must all rec-ognise the importance of Alternative Dis-pute Resolution in indigenous issues. Itis disappointing that the process of rec-onciliation with our indigenous popula-tion has lagged.

I attended the Australian ReconciliationConvention held in Melbourne in 1997.There was considerable goodwill evident

I called this talk, “If at first you don’t

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5

Mediation News – December 1998

RUSTRATION ANDENCOURAGEMENT

Georgina Catley

FAn overview of the themes of the papers and discussions at the SADRASymposium Ten Years of Dispute Resolution — Towards the New Millennium.

∆

The Symposium to celebrate the TenthAnniversary of SADRA - Ten Years ofDispute Resolution - held on MondaySeptember 21st at the University ofSouth Australia, reflected a mood of‘frustration and encouragement’ withregard to developments in dispute reso-lution over the past 10 years. After a tra-ditional Kuarna welcome by GeorginaWilliams, representing the Kaurna Peo-ple, Dale Bagshaw, chairperson ofSADRA for the past 10 years summarisedthe achievements of SADRA and invitedProfessor Alison Mackinnon to introducethe first eminent speaker, Dame RomaMitchell. A number of speakers followedthroughout the day, representing a rangeof organisations and presenting variousviews on the use of alternative methodsof resolving disputes. This article willsummarise the themes which emergedfrom the papers presented at this sym-posium.

EDUCATIONThe Symposium exposed that themammoth task of re-educating thecommunity to use more cooperativemethods for resolving disputes has beenfrustratingly slow. Dame Roma Mitchelland many other speakers emphasised thateducation, training and research are allnecessary if mediation is to be usedeffectively.

Judge Jennings also remarked that a shiftfrom the use of conciliation to media-tion in industrial matters is unlikely untilpeople involved in the industrial arenaare aware of the availability of mediation.

South Australia has been fortunate in thatthe University of South Australia has

been offering courses in mediation since1993, and other organisations such asLEADR have been providing training inmediation since 1994. In addition, theUniversity of South Australia now offersa Graduates Diploma in Conflict Man-agement and a Master of Conflict Man-agement in a nested arrangement with theGraduate Certificate in Mediation. Thesecourses have consistently attracted stu-dents from interstate, and now from over-seas.

David Jenkins reminded us that, whilethere have been changes over the past 10years, further education of the publiccould be achieved through:

• formal programs

• promotion and publicity in the printmedia

• TV editorials and programs

• the development of a private profes-sion.

John Steele suggested that new forms ofpublicity are needed, such as informationdisplays in shopping centres. Further re-search is also needed as to what peoplewant from Alterative Dispute Resolution.

Marketing and research are vital to theeducation process for the uptake of dis-pute resolution processes such as media-tion, according to John Murray. He fur-ther suggested that people are influencedby teaching and modelling, rather thanby confrontation.

David Jenkins and Judge Brebner high-lighted the need to reverse the litigioustrend in the community and emphasisedthat court proceedings should only oc-cur as a last resort rather than as the firstoption. An additional paradigm shift isalso necessary to shift the focus from“lawyers who mediate to mediators whohappen to be lawyers”. In other wordspublic awareness needs to be at a levelsuch that when the notion of ‘disputes’arise, an automatic thought associationwould be ‘mediation and mediators’rather than ‘litigation and lawyers’.

John Hodgson pointed out that sinceenvironmental disputes are often of pub-lic interest, the use of mediation in re-solving these disputes could play a part indeveloping public awareness of the advan-tages of using the mediation process.

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“…After witnessing the process and readingtranscripts, I was excited by the sheer dreams itengenders. In a society which tries to keep mostemotions well and truly hidden, It was started andilluminating to see emotions suddenly tumbling outuncensored and raw…”

on the part of the many who attendedthat Convention and one hoped that truereconciliation was just around the corner,but subsequent events have dissipatedthat hope. It is appropriate that thisSymposium will discuss AlternativeDispute Resolution in the context of in-digenous issues.

I congratulate SADRA upon its achieve-ments during the 10 years of its existence.It as grown amazingly as this Symposiumwill illustrate. It has joined with similarassociations in New South Wales and Vic-toria in the production of Mediation News- a national newsletter of value to all whoare interested in alternative dispute reso-lution. It has worked closely with theSouth Australian Chapters of the Insti-tute of Arbitrators and Lawyers engagedin Alternative Dispute Resolution(LEADR), the Law Society, the Courts,the South Australian Police, Equal Op-portunity Commission and the threeUniversities.

It has worked also with the similar asso-ciations in other States and withNADRAC to promote the developmentof national standards in dispute resolu-tion. Its members have participated ininternational conferences and have gainedfirst hand experience of alternative dis-pute resolution in overseas countries.

It must, however, remain alive to the rec-ognition of the supremacy of the rule oflaw in our community. Two essential fea-tures of the rule are first that the stand-ards required of the community are pub-licly applied. The judges who constitutethe judicial arm of government thereforehear cases in public and give their judg-ments and the reasons for the decisionsin public. While we retain our presentsystem of law and government alterna-tive dispute resolution must remain whatit is called, namely an alternative, not asubstitute for legal decision.

I wish the Association well for the next10 years and thereafter.

6

Mediation News – December 1998

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∆Anne Prior noted that when disputes ariseover the custody of children the majorityof people in South Australia still believethat seeing a lawyer is the first step totake. The call for a multi-faceted approachto education on cooperative conflict reso-lution methods, was clearly a strongtheme of the Symposium.

SCHOOLSSchools can play an important part inencouraging the use of problem solvingskills in conflict management. Speakersemphasised that programs such as peermediation teach children the skills andbenefits of peer mediation and this canhave a ‘trickle up’ effect.

Pamela Harrison outlined the Peer Me-diation Program offered by the MarionLegal Services, which has now trained2500 primary school students. Throughteaching students to communicate feel-ings, listen to the needs and points of viewof others and to managing anger, chil-dren find creative solutions for problemswhich they seem to know would not oth-erwise go away

ACCREDITATIONArguments were proposed by DameRoma Mitchell for mediators to betrained within a recognised accreditationsystem.

David Jenkins suggested that there is aneed to develop a private mediation pro-fession which allows for:• choice of mediator• quality of mediator through competi-

tion• overcoming the problem of user pays

system versus court provision of a freeservice

• wider numbers of mediators and there-fore wider use of mediation.

In addition, he highlighted the need foran acceptance by the courts of privatemediators.

MEDIATION AND THE ROLE OFCOURTSDame Roma Mitchell stressed that me-diators should not ‘declare the law’ andfurthermore the courts should retain theright to interpret the law. There shouldbe clearly defined roles for courts as de-cision makers and/or problem solvers.Other speakers noted that if the courtshave a role as problem solvers then re-sources need to be provided for the ad-ministration of mediation.

DELAYS AND COSTSOne of the aims of the reforms to legalprocedures has been to reduce court de-lays and costs - Dame Roma reported thatdelays escalated from weeks to years in

some cases. Judge Brebner agreed thatthe litigation explosion around the worldin the 1980’s has lead to immense delaysin hearing cases. Dame Roma claimedthat mediation must therefore become anoption for state legal processes. Howevershe warned that it is unwise to call formediation simply to reduce costs. In fact,in the case of industrial law, this movecould backfire in that the costs for me-diation could add up to more than a dayin court.

PRE-MEDIATION MEETINGSJudge Brebner urged for more work tobe done at the pre-trial stage of disputes,since 90 - 95% of cases reach agreementbefore going to trial. He argued that al-ternative dispute resolution methods,such as mediation and conciliation,should be introduced sooner rather thancloser to trial date. While reducing de-mand on the courts, an additional advan-tage of mediation is the substantial sav-ing in costs for the parties involved in the

dispute. Judge Brebner is leading a Pilotcourt-based Mediation Program, imple-mented in 1998, involving thirtymediations to date. Importance is placedon the pre-mediation meetings . In thesemeetings the mediator meets the partiesinvolved to:

• explain the mediation process

• gain an agreement to mediate

• collect pre-mediation reading

• allow for the parties to outline thedispute

• conduct individual meetings

In this process lawyers take a back seat -they are there to advise only. While theevaluation of this Project is not yet com-plete, indications so far are that 50% ofcases are settled at mediation, and someare settled after mediation but before thecourt hearing. Therefore it seems that themajority of cases are settled out of courtas a direct result of mediation.

Please send me The Australian Dispute Resolution Directory.I have enclosed a payment of $29.50 plus $5.00 for postage and handling.My cheque is payable to: University of South Australia ORCharge my credit card: AMEX nn Bankcard nn Visa nn M/card nnNameAddress

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Card No. nnnn nnnn nnnn nnnnCard Expiry Date nn /nn SignatureMail or Fax coupon to:Dale BagshawGroup for Mediation Studies, School of Social Work and Social Policy,University of South Australia, Lorne Ave, Magill SA 5072Fax: (08) 8302 4377 Telephone enquiries: (08) 8302 4378

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Mediation News – December 1998

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USE OF ALTERNATIVE DISPUTERESOLUTIONAlternative methods for resolving dis-putes are applied in many organisationalstructures in society. Judge Brebner notedthat Alternative Dispute Resolution is nota new phenomenon and in fact dates backto the 1891 Arbitration Act which rec-ognised that differences could be resolvedoutside of a court room.

David Jenkin noted that while there hasbeen an increase in the use of mediationin commercial contracts in South Aus-tralia, requests for mediation are slow.The most common issues in disputes thatlend themselves well to the use of me-diation are those which involve relation-ships - such as intellectual property, part-nership disputes, internal business dis-putes and contract disputes.

Conciliation is the most often used formof Alternative Dispute Resolution in in-dustrial disputes inSouth Australia.While the IndustrialCommission has thepower to mediate,only one particulardispute has used me-diation. JudgeJennings did high-light the fact that byusing mediation, awhole range of addi-tional disputes couldbe resolved duringthe process. Anotheradvantage of media-tion as seen by JudgeJennings is the own-ership of the resultsby the disputing parties.Judges, Com-missioners and conciliators have had me-diation training but conciliation and ar-bitration are still the common approachesused in the industrial relations arena inSouth Australia.

The importance of acknowledging cul-tural differences in dispute resolution washighlighted by Dr Suzi Hutchings. DrHutchings raised important questions asto who should interpret culturalunderstandings, particularly in the justicesystem, as Aboriginals for example are themost incarcerated cultural group in Aus-tralia. If this over representation is tochange then caution needs to apply infinding acceptable alternative ways ofaddressing law infringements. Dr Hutch-ings also emphasised the cultural differ-ences that exist within Aboriginal com-munities by comparing the appropriate-ness of cultural laws used in traditionalAboriginal communities with other formsof law needed by urban Aboriginal

groups. Suzi Hutchings emphasised theneed to get to know the people involvedin a dispute involving Aboriginal peoplebefore the mediation takes place, and tosort out the needs of the individuals on acase by case basis, so that the subtleties ofcultural relationships can be determined.

While mediation is offered by the com-munity legal services, John Steele out-lined the reservations of communitymembers in using mediation to resolveneighbourhood disputes. John believesthat in part this is due to the practice ofpeople putting up with the problem un-til the aggravation level is intolerable.They are then not in a framework con-ducive to talking with one another.

Jan Kitcher noted that Family Conferencecoordinators in the Juvenile Justice sys-tem use many mediation skills in an at-tempt to develop responsibility for be-haviour within youth offenders and to

promote victimparticipation andreparation. Withthe involvement ofmembers of thefamilies of youthoffenders, relevantmembers of thecommunity andvictims and theirfamilies or sup-porters, FamilyConferences playan educative rolein the use of me-diation skills as aproblem solvingapproach to mat-ters otherwise

dealt with by Youth Courts. The FamilyConference models an alternative to theadversarial approach to law enforcement,by using a restorative justice approachwhich makes amends to communitymembers. This method, by providing arelational context to the resolution ofdisputes, is inherently community build-ing.

John Steele suggested that a ‘mind shift’is needed in community members, froman insistence on individual rights andregulations to the consideration of mu-tual needs and cooperation.

He proposed that since neighbours tendnot to know one another, there is a per-petuation of a mindset which insists on‘rights’ and focuses on blame, owing tothe fact that there is an absence of rela-tionship in the context of the dispute.

Environmental disputes, particularly per-taining to the use of the land, providesan area of growing importance in the use

8

Mediation News – December 1998

OMMUNITY MEDIATION IN ARIGHTS CONSCIOUS ERAJohn Steele

of mediation, according to John Hodg-son. While it is mandatory to offer me-diation before some courts dealing withenvironmental issues and while mediationis clearly seen as a valuable step along theway in environmental disputes, JohnHodgson emphasised that mediation isan adjunct, not an alternative to adjudi-cation. Mediation may in fact not be ap-propriate in all environmental disputesbut as John Hodgson pointed out, me-diation can in theses cases play an impor-tant role in helping to develop relation-ships and in narrowing down the rangeof issues to be dealt with in court, therebyreducing court costs.

Anne Prior strongly advocated the use ofmediation within the Family Law arena.Mediation allows for clients to take com-mand of their own and their families’lives. Anne reported that 80% of cases inRelationships Australia reach full agree-ment quickly. However she believes thatfor mediation to work there need to besubstantial shifts in the attitudes of mem-bers of the legal profession.

SUMMARYOverall, it is evident and encouraging tosee that the formal use of ‘alternative’ orprimary dispute resolution methods haveincreased in South Australia over the pastten years. Some concluding remarks byDale Bagshaw stressed the importance ofthe use of language and the implicationsof using categories such as ‘lawyers andnon-lawyers’ - placing law at the centreof dispute resolution. John Murray, in hissumming up of the salient points raisedin the Symposium, emphasised the needto overcome the obstinance that exists indemarcation issues illustrated in such lan-guage. The term ‘alternative dispute reso-lution’ begs the question of ‘alternativeto what’ in the minds of the public. If itmeans an ‘alternative to litigation’ thenit perpetuates the law v. non-law di-chotomy. As John Murray proposed,mediation is an important and necessarypart of the justice system not a replace-ment or an adjunct. He believes that ifthere is a true desire to educate the com-munity in ways of resolving disputeswhich enhance relationships in the com-munity, then terms such as ‘primary dis-pute resolution’ would be preferable.

Solving problems through communica-tion and by considering the needs andinterests, rather than the positions of dis-puting parties, could perhaps be achievedif processes such as mediation were to beseen as the ‘first port of call’ rather thanrelying on the law in the first instance.If, as purported by John Murray, law fol-lows social change rather than leads it,then mediation must be put at the cen-tre of the options for dispute resolutionrather than as a ‘poor cousin’ of the law.He believes that this can be achieved with“patience, education, training and goodstrategies”.

∆

In the early days, mediation seemed likea great idea, particularly to those of usworking at the community level whocould see the trauma caused in people’slives by litigation, where all their re-sources were pitted against each other inan effort to win a legal battle instead ofbeing brought together to solve the realproblem. Governments in most States,particularly New South Wales, could seethe possibilities for reducing the costs ofthe legal system and the level of conflictin the community. The trouble was, andstill is, that out there in the communitypeople in conflict situations do not see itthat way.

The greatest challenge for community-based mediation services, which are of-fering a process in which participation isvoluntary, is to get more people to me-diate. While the number of people con-tacting the Services has certainly in-creased over the years, the total now be-ing 3000-3500 new contacts a year, thevast majority of them want advice – ad-vice about what they can do or get some-one to do for them – normally adviceabout the law, less often about how todeal with the other party, and occasion-ally about the availability of technicalforms of assistance. In each of the lastfive years 74-79% of all inquirers to ourServices wanted this kind of assistance.Most of the rest wanted us to act as a‘go-between’, raising the problem, pass-ing messages, facilitating negotiation.Shuttle negotiation involving the otherparty occurred within the year in 7.5% to10.5% of the total number of cases, and‘face-to-face’ mediation in a further 4%.The figures are consistent over time andconsistent between similar organisationsinterstate. The question is – why hasn’tmediation caught on with the people whocould use it to resolve their disputes? Therelatively high level of total demand in-dicates that enough people know aboutmediation, or at least are able to find outabout it when they have a problem.

Community mediation became a featureof the landscape in the United States adecade sooner than in Australia. Con-cerns about the costs and delays involvedin litigation and the inappropriateness ofthe adversary process for resolving rela-tively minor disputes were central to thecase for the early Neighbourhood JusticeCentres as they were called. Apparentlythere were also other sentiments behind

the movement – cynicism about lawyers,distrust of centralised power and a pref-erence for community control. While theideology of community was very muchto the fore, however, Tomasic notes thatthe movement simply grafted communitymechanisms on to the legal system insteadof seeking to bring about structuralchanges in the community.

In their study entitled “Doing unto oth-ers : Disputes and Dispute Processing inan urban American Neighbourhood”Suzanne and Leonard Buckle commentthat the Neighbourhood Justice Centreprogram was designed without adequateprior research about the weaknesses ofthe legal system or people’s preferredmeans of resolving problems. There wasin effect, no market research done. TheBuckles’ research, in a community iden-tified only as Johnson Square, found thatordinary people had a strong sense ofwhat was the appropriate way to resolveproblems. They called it “self-help jus-tice”. This involved direct confrontationwith the person(s) identified as the sourceof the trouble, or calling on their entitle-ment to the support of friends or publicservices (invariably provided by local gov-ernment) to intervene by direct actionor, at the very least, to validate their senseof grievance.

In her book Peacemaking in your Neigh-bourhood: Reflections on an experiment incommunity mediation Jennifer Beermakes a similar observation about thepreference of people in the suburbs ofDelaware County. Depending on the im-portance of the relationship, people willavoid and accommodate annoyances forsome time. Some try to talk to each other.If this fails and the annoyance persists,there is little incentive to maintain afriendly relationship. People go to offi-cials. They cross what she calls the “GreatDivide” from a private to a public dis-pute. They have a strong expectation thattheir rights – particularly to privacy, safetyand security – will be upheld.

Our experience in Adelaide is somewhatsimilar to Jennifer Beer’s. The commonpattern of dealing with neighbour andcommunity disputes is to “put up with”the problem until the aggravation levelexceeds a certain tolerance point, deter-mined, I suspect, by the level of interestin not having to do anything about theproblem. Some people will talk to theother party, but generally this only hap-

CC

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Mediation News – December 1998

People will not settlefor anything less than

what they are‘entitled’ to,

invariably because intheir eyes “it’s a

matter of principle –it’s not the money”

∆pens if there is some positive history ofinteraction. (That usually means theyhave to know each other and too oftenneighbours don’t. We are becoming ananonymous society.)

Many people approach an agency whichthey assume will have authority to dealwith the problem in some way. In thekinds of disputes we commonly dealwith, these agencies are local Councils,Police, Housing Trust and other govern-ment instrumentalities such as the Envi-ronment Protection Authority or theCommunity Housing Authority. In thepast five years between 57 and 62% ofour files have been referred by these le-gal authorities. Another 13 to 18% werereferred from legal advisers and a furthersignificant percentage had read about ourServices in legal information publica-tions. Virtually none came from theCourts – comparatively few neighbourdisputes reach the civil Courts.

These figures only represent the casesthat reach us, of course. But they do ac-cord well with the findings of a 1981 sur-vey of over 1,000 households in Victo-ria by Dr. J. Fitzgerald known as the“Australian Households Dispute Study”.Thirty-nine percent of households re-ported grievances with neighbours in thepreceding 3 years. Thirty-five percent ofthese became disputes. In these situations40% turned to the local Council for help,30% to the police, 10% to legal advisersand 8% to housing authorities or agents.None went to Court.

People who contact government authori-ties about a dispute generally expect toreceive some assistance in securing whatthey perceive as their rights. They willprobably find out more about the actualcontent of their rights, which serves tocrystallise them in their minds. If theproblem is perceived as a minor dispute,however, they may well receive the re-sponse that “there is nothing that the au-thority can do” and that they should trymediation. The reason is usually thatthere is a lack of jurisdiction, or re-sources, or perhaps it isn’t ‘core business’for the agency. People who believe theyhave rights and are frustrated by the in-ability or unwillingness of legal authori-ties to act on their behalf, become fo-cused even more on their rights. Peoplewho consider that they are upright, tax-paying citizens of long standing feel theyhave earned their rights – why shouldthey give them up? If they contact us,they can’t see why they should mediate.Even if they come for mediation theycannot easily make the shift from a‘rights’ perspective (or a blaming per-

spective) of the problem to a ‘needs’ per-spective on which any lasting resolutionshould be founded.

The law relating to specific neighbour-hood disputes is more likely to be civil lawunless the dispute escalates. Much of it isto be found in the common law of nui-sance and trespass. People’s rights in theseareas can ultimately be enforced onlythrough the courts. The Police and theCouncils tell them it is a ‘civil’ matter -they have to initiate legal action. Gener-ally people who are not used to collectingbusiness debts are loathe to do this. Theywill come to mediation as the more ‘user-friendly’ alternative to court action, butstill expect that somehow their rights willbe upheld.

In many cases where people hold out fora solution based on perceived rights, thereare in fact no specifically relevant legalrights – public or private. They are, in ef-fect, claiming a moral right or a prefer-ence which is derived or extrapolated fromthe “spirit of the law” or “justice” as theysee it, but is not actually the subject oflaw. I have heard people in mediationbrand everything they didn’t like to hearabout themselves or their family as “defa-mation” (which gives them the right toleave).

People will not settle for anything less thanwhat they are ‘entitled’ to, invariably be-cause in their eyes “it’s a matter of princi-ple – it’s not the money”). Typical exam-ples of such principles are “No one speaksto my children like that”; “Just becausewe’re a big company, people think theycan hit us for money”; “First come, firstserved” and “Why should they be treatedany differently?”. These principles serveto extend the breadth of the “rights per-spective”. The implication is that they aresomehow deserving of recognition by oth-ers (particularly the other party and themediators), whereas in reality the princi-

ples are simply based on personal valueswhich happen to be commonly held.

If that is our greatest challenge, whathave we been doing about it? In the long-term our most effective strategy for de-veloping a widespread appreciation of themerits of the “Win-Win approach” toconflict will be the schools peer media-tion program. While the CommunityMediation Services were active in thisprogram in its early stages in the north-western suburbs, most of its successes aredue to the more recent work of theMarion Legal Service’s Pam Harrison,and I am delighted to note that she willbe speaking about it today. It has beenobserved in the United States that teach-ing conflict resolution skills to childrenresults in a ‘trickle up’ effect as they talkto and influence their parents and otheradults. I have been to an Adelaide pri-mary school to commend publicly aschool peer mediator for her exemplaryrole in de-escalating a potentially violentdispute between adult neighbours. Peermediation in secondary schools has nottaken off to anything like the same ex-tent, probably for reasons which haveemerged in recent research by Dale Bag-shaw and Ken Rigby at the University ofSouth Australia. We have adapted oursecondary school program accordingly,and now offer workshops on conflictresolution skills which students can useon a completely informal basis withintheir peer group.

Another significant strategy for shiftingthe basis of the common approach toneighbour and community disputes fromrights to interests has been the develop-ment of ‘ADR friendly’ legal informa-tion booklets in collaboration with theLegal Services Commission – “SharedHouseholds and the Law” and “StrataTitles and the Law” and especially“Neighbours’ Trees and the Law” andthe 1998 edition of “Fences and theLaw”. They describe rights, but in thecontext of relationships, and promotemediation at every opportunity.

Offering technical assistance with prac-tical solutions is another way in whichwe have sought to focus on needs. Hir-ing out equipment to help people traindogs not to bark inappropriately, vacuumup fallen leaves, and lop high overhang-ing branches has been an interesting facetof the Service.

Jennifer Beer has stressed the importanceof intervention timing in overcoming thedeep-seated preferential inertia towardsa reliance on rights.

“Once the Great Divide is crossed it is

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Mediation News – December 1998

succeed”, to express the struggle it hasbeen to establish family mediation theselast ten years in South Australia. The cli-mate in which we have had to grow hasbeen one of opposition, largely, both pas-sive and active. We have had our support-ers, but we have also had large forcesagainst us. I was naive enough to under-estimate these at the beginning.

It is a strange coincidence, and perhapsan important one, that this 10th birth-day, so to speak, occurs in exactly themonth that Relationships Australia (SA)is celebrating its 50th year. Across Aus-tralia within the next twelve months, allthe Relationships Australia organisationswill be celebrating a 50th birthday.

We all began, as you will mostly know, asthe Marriage Guidance organisation. Ourbeginnings were very small and not un-like those of the mediation movement.

Mediation started in a not dissimilar way.Interested individuals had heard of thesuccess of mediation, mostly in America,and began to encourage training and toseek Government assistance. They, too,were successful, and in 1990 the first maincontingent of Family Mediation Serviceswere established. That is when I enteredthe scene.

The burgeoning divorce rate was certainlya motivating factor for Government, butthere were also concerns about the inap-propriateness of the adversarial family lawsystem, and its attendant high costs, forthe resolution of what are basically hu-man relationship problems.

It is little wonder, then, that it was mostlyhuman relationship professionals whoshowed interest in the new movement.There were one or two lawyers, the al-truistic visionaries of their profession, butmostly it was people of counselling or so-cial work backgrounds who began to trainfor Family Mediation. The fact that peo-ple from my background were assistingpeople with property and financial dis-putes certainly was considered quite un-suitable by many in the legal profession.

.I joined the service in 1990. My back-ground was as a Social Worker and Mar-riage Counsellor, and over my 30 yearsof practice I had become disturbed by the

fate of couples who separated and whowere ‘thrown to the lions’ in the legalsystem. I knew there must be a better way.That was my stake in mediation, and itremains so today.

There IS a better way – it is calledmediation.

Armed with my counselling skills (some-times a liability, I thought in my earlyyears as a mediator) and a head full oftheory from Folberg and Taylor, JohnHaynes & Saposnek (the only booksavailable to me on mediation from theFamily and Community Services library),I began work as the Manager of FamilyMediation. We all went to CDR work-shops in Melbourne or Sydney and,frankly, during mine I was completely atsea. This role of mediator was a hard onefor a counsellor to assume, with the bestwill in the world.

In the early days we learned to trust ‘theprocess’, and I came to know how pow-erful and successful that process could be.

Two major evaluation studies, compar-ing the different types of Family Media-tion Services – Court and community-based – and an extensive study into do-mestic violence and mediation, were con-ducted. These testified to the success ofthe process, the outcomes and the satis-faction of our clients. But they didn’t si-lence our critics.

Somehow, I suppose I thought that eve-ryone would see the potential of thiswonderful new path for separating cou-ples and would be anxious for them touse it. I was wrong. I came to realise howmany have a stake in keeping the currentadversarial system going. Ten years later,they are still working diligently to do so.

I have always acknowledged and sup-ported the place of the legal system inFamily Law. However, its adversarialprocesses are NOT appropriate for everyseparating couple.

There were huge forces working againstmediation:• Lawyers;• Family Court;• Feminists;• The Domestic Violence lobby;

HE FIRST 10 YEARS OFMEDIATION IN SOUTHAUSTRALIA“If at first you don’t succeed - try, try again”

Anne Prior, Director of Services, Relationships Australia (SA) Inc.

Thard to go back again. Mediation is ide-ally suited for that brief moment whenparties decide the time has come to con-front the situation head on, but beforethey have formalized the situation as amatter for public judgement and nolonger wish to talk things out. Thequestion is how to devise mechanisms tocatch people standing on that dividingline”.

We realized that most people on that di-viding line had to go shopping regularlyand many of them at large shoppingtowns. By setting up a very visible infor-mation display stand in shopping mallswe were able to catch people who hadreal, current problems with neighboursor community groups before they madespecifically legal enquiries and developedan expectation that their rights should beenforced by authorities. This worked verywell in terms of the numbers of peoplewho stopped to ask questions, but mostlybecause the centrepiece of the display wasan extremely friendly and wise-lookingNewfoundland dog. We also realised thatpeople on Jennifer Beer’s dividing linewatched, read or listened to the media.Unable to pay for media advertising,we have tried to take full advantage ofthe opportunities for media exposure.Unfortunately, though, our work is con-fidential and the media are mainlyinterested in ‘real life’ stories. To getaround this we have even offered to de-velop a television drama series onmediation with a major production com-pany, but to no avail. Three-minute se-quences on Gardening Australia is allyou’ll get.

For the future, I would like to see a greatdeal more research on what people wantfrom alternative dispute resolution. Thekey to success in helping people seeconflict problems more in terms ofneeds than rights lies in taking advantageof every opportunity to shift publicawareness.

This may mean new forms of publicity.It may mean new forms of process whichrecognize legal interests. We may needto develop a clearer vision of what itwould be like if organizations and com-munities were built more on an ethic ofcooperation than the pervasiveness ofrules, a commitment to meeting needsmore than regulating behavior.

A futuristic vision of that kind is a fea-ture of the television series “Star Trek”.But the fourth millennium is too long towait.

∆

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Mediation News – December 1998

• Men’s Groups; and, I regret to say,

• Counsellors and people of the help-ing professions.

The truth is that the adversarial system isdeeply entrenched in our collective psy-ches. When push comes to shove, 99 outof every 100 Australians believe that re-sort to a lawyer is the first and best op-tion.

The general public still believe thatchanging locks on the doors, removingmoney from bank accounts, getting im-mediate legal advice, and getting “cus-tody” of the children (right or wrong) isthe appropriate response to a relationshipbreakdown. Many relationship counsel-lors, too, still believe this, deep down.

The legal profession, in general, in SouthAustralia has at best paid lip service tofamily mediation. Lawyers have adoptedmediation when it has been a way ofswelling their own legal practice. Refer-rals to mediation from lawyers remainstaggeringly low. Yet most lawyers tell mehow much they support it. As SouthAustralia has one of the highest divorcerates in Australia, we should by rightshave a burgeoning mediation caseload.There are a handful of solicitors who havesupported us, and they stand out likebeacons in their profession. I thank them.

Against these beliefs, it is difficult to con-vince people that it is better to find theirown solutions to disputes.

In South Australia, I have encountered aself-interested Family Court which re-sisted my efforts to publicise our servicein the Court, as we are entitled to do

under the Family Law Reform Act. Asthe Court does not provide a mediationservice itself, this seemed to me ratherextraordinary.

I have encountered every kind of ‘patchprotection’. The last thing being consid-ered seems to be the interests or well-being of the clients. I actually have let-ters in which it has been stated that itwould be ‘too confusing’ to tell clientsabout mediation. Patronising attitudestowards clients such as this have perme-ated my contact with possible referersover the years.

I have come to realise that many profes-sionals, including lawyers, do not onlyNOT believe in self-determination, a ba-sic tenet of mediation, but they actuallybelieve that clients need to be told whatto do. It is therefore no wonder that theyfind mediation distasteful.

I have had to deal with Men’s Groupssuspicious of our procedures about Do-mestic Violence and accusing us of be-ing anti-male. I have equally had to dealwith the domestic violence lobby, whoseem to believe that we are so incompe-tent and so unethical that we would,willy-nilly, drop victims of DV intomediations and watch them walked allover by the perpetrator.

Mediators have been evaluated, evaluatedand evaluated. We have had Governmentregulations imposed on us to “protect”our clients. We have Government re-quirements for our practice that few otherprofessionals are asked to meet. I believethat we are still regarded as somewhatsuspect.

At times it has been hard to be polite. Ina recent example, the Parliamentary In-quiry into Relationship Education had afew ill-informed words to say, by the way,about family mediation in communityagencies.

Community agencies are tired of ill-in-formed criticism of their services.

I have continued to marvel at the activepropaganda of the legal system whichholds that people, including DV victims,have their ‘rights’ and safety adequatelyprotected if they use that system. Wouldthat were the case. The legal system hasto offer huge expense (for some, penury),prolonged delays such as to make statusquo decisions the order of the day forchildren, escalation of conflict, confusion,frustration and powerlessness - to namea few. It remains a fact that the success ofyour case is a function of your ability topay and pay and pay, your vindictiveness,the quality, expertise and diligence ofyour lawyer, and the amount of time youcan afford to hold out. Ten years on, thepropaganda is going strong.

Given the forces against us, it is really awonder that we have survived, let alonegrown. But family mediation is a plantgrown in hardship, and it is all thestronger for that.

It has not been all bad. Family media-tion has had significant rays of sunshine.It has had a series of, I consider, enlight-ened Commonwealth Governments,both Liberal and Labor, who have con-tinued to support family mediation in theface of relatively small numbers of users.Without this support, our services wouldhave died years ago. In South Australia,we have benefited from co-operative re-lationships between the different types ofmediation agencies in Adelaide, for whichI am thankful to them. We have tried tolearn from each other.

South Australia has been most fortunatein having Dale Bagshaw, who has heldthe flag of mediation aloft, especiallyFamily Mediation, throughout theseyears in the face of all resistance. Herpassion for mediation has been commu-nicated to us. Her Graduate Certificatein Family Mediation was a first for Aus-tralia and has created a pool of peoplewith a sound theoretical understandingof Family Mediation work. Those pro-fessionals now work in a diverse range ofagencies. We have been delighted to havea part in the teaching of that Course.

Family mediators have found clients, inspite of no funds for publicity, who wishto take command of their own familiesand affairs. Our clients have taught us themost. It is they who have given me the

“You say, ‘Off with her head,’ but what I’m hearing is,‘I feel neglected.’” ∆

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Mediation News – December 1998

will to continue. I have seen them ben-efit from the mediation process. I haveseen them come estranged, and leave atease with one another. I have seen theirmany children removed from a humanbattleground to a place of reason andcalm. This work has been a privilege.

In the past 10 years, Relationships Aus-tralia (SA) has helped about 5,000 indi-viduals in dispute, as well as some fami-lies in dispute. We have conducted over3,000 joint mediation sessions. Mostparties (about 80%) have reachedfull agreement quickly, cheaply andhonourably, their financial resourcessaved for the good of their childrenand themselves. They have transformeda bond based on love and lifetimecommitment to one of tolerance andforbearance.

For much of those ten years in Adelaidethere was no other agency deliveringFamily Mediation. The Family CourtFamily Mediation Service came and went,but we were pleased when recentlyCentacare joined the field of practicehere. I believe it has been a struggle forthem, too.

Relationships Australia (SA) mediatorshave contributed to the body of litera-ture about mediation practice in Aus-tralia. We have trained many fine media-tors – professionals of the highest cali-bre. We have been invited to take part inthe training of lawyers through Univer-sities and law schools.

In 1995, we established a country Me-diation Service in Berri, a feat that fewother community agencies in Australiahave managed. If it’s hard establishing

mediation in a city, it’s harder still in thecountry.

I wish to place on record my admirationfor the mediators I have worked with inour service. They are a bunch of the mostmeticulous, skilful, ethical, diligent, hard-working, long-suffering, mature, good-natured professionals I have encountered.We have been blessed with a happy team.They would grace any profession. Theirconcern for their clients’ best interests isalways paramount. But, in spite of the re-wards, it has been a struggle.

What of the future? I am not a bit goodat crystal ball gazing. Given the increas-ing trend towards serial relationships, willthis make for more family disputes? Giventhe rapid rise in the number of childlesscouples, will this make for a drop in theneed for mediation services?

Mediators face a significant challenge tomake family mediation practice relevantand helpful to people of diverse culturaland linguistic backgrounds. Family Me-diation in Australia is grounded in Aus-tralian family values as they are enshrinedin the Family Law Act. These values arenot shared by people from some othercountries, and we struggle to find a re-spectful process which will acknowledgethe values of our clients, respect their dif-ferences and still enable us to fulfil ourmandate within the framework of theFamily Law Act.

Given what I have said about the forcesagainst mediation, perhaps we can beproud of the many achievements. InSouth Australia, we now have kids beingtaught mediation skills and concepts atschool; we have the use of mediation in

many workplaces; we have mediationbeing used or tried in many Courts, fromthe Magistrates’ to the Supreme Courts.And we have Government agencies likethe Child Support Agency referring cli-ents systematically to family mediation atthe point of separation. We have unionmembers who are entitled to free media-tion as one of the benefits of their unionmembership. And we have postgraduatecourses in mediation and conflict man-agement in our Universities. These arebig achievements.

I have a concern that mediation is be-coming the blanket word to describe toomany different primary dispute resolutionprocesses and interventions. Not all ofthem are grounded in ‘real’ mediationconcepts like self-determination. I hopethat they won’t bring mediation a badname or dilute the essential principles. Ihope I am being worried about nothing.

Those of us who continue to practisemediation based on self-determinationand the parties being responsible for theoutcome are now being described as ‘pur-ists’. That seems to be the latest dispar-aging title.

What matters most is that perhaps morepeople engaged in all forms of disputeresolution now know, but don’t quite yetbelieve, that people ARE capable of solv-ing their own problems given the rightintervention, and that they make deci-sions they are far happier with in the longrun and that they uphold.

At the end of the day, this is the neces-sary change in community thinking whichwill, I hope, give mediation a future placein the sun.

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Mediation News – December 1998

CONFLICT MANAGEMENT RESEARCH GROUP,UNIVERSITY OF SOUTH AUSTRALIA

The Research Group for Mediation Studies at the Universityof South Australia has decided to change its name to the Con-flict Management Research Group to more accurately reflectthe broad focus of the research interests of the staff and re-search students attached to the Group.

The Research Group for Mediation Studies was formally es-tablished in August 1994. It currently includes staff and post-graduate students from the Schools of Social Work & SocialPolicy, Communications, Education, Law and Legal Studies,and Business Management.

Other interested staff and post-graduate students are invitedto join.

Research and consultancy interests of staff and students inthe group focus on all aspects of conflict studies and the broadrange of approaches to the resolution or management of con-flicts and disputes.

Fields of interest include – the courts and other legal sys-tems, commerce, industrial relations, human resource man-agement, the primary, secondary and tertiary education sys-tems, correctional services, juvenile justice, family and childwelfare, and international relations.

Current research and consultancy interests of members in-clude – conflict and bullying in schools, restorative justice,conflict theory, cultural aspects of conflict, conflictsinvolving Indigenous communities, educational dramaand conflict, family mediation, domestic violence,negotiation, conciliation, mediation, and industrialrelations.

Members of the group were instrumental in thedevelopment of three post-graduate fee-paying coursesin the University of South Australia – the GraduateCertificate in Mediation in 1993, and the GraduateDiploma in Conflict Management and Master of ConflictManagement in 1997/8. Honours, Masters by Research,Masters by course-work, and Doctoral students withan interest in the area are supervised, supported and encour-aged by staff.

These students are invited to participate in the Group’s ac-tivities and to present papers at Research Seminars.

Staff provide research and consultancy to government organi-sations and community groups in the various approaches toconflicts and disputes such as: negotiation, facilitation, con-ciliation, mediation and arbitration, and have assisted in thedevelopment of new services in the community.

The group welcomes Visiting scholars from within Australiaor from overseas. Reciprocal arrangements for Visiting scholars

have been established with the International Institute for Con-flict Resolution, University of Melbourne, Victoria.

The new aims and objectives of the Conflict ManagementResearch Group are outlined below.

AIMTo promote the study of conflict and the management ofconflict, in all its areas, whether by the processes of the legalsystem or otherwise, for the benefit of the diverse culturalgroups in modern Australia.

OBJECTIVES1. To provide a pivotal point for research and consultancies

in the areas of conflict studies, conflict management anddispute resolution, in close collaboration with communityorganisations, government and the tertiary sector, and withthe continued establishment of international links.

2. To assist with the development of conflict theory and thepractices of conflict management and dispute resolutionthrough consultancies, interdisciplinary research, the con-duct of seminars and conferences, and the publication ofarticles, monographs and books at a national and interna-tional level.

3. To provide opportunities for ongoing critical analysis ofapproaches to conflict in a multicultural society, in par-ticular where there are imbalances of power.

4. To contribute to the development of national standardsfor the education and training of people involved inmanaging or resolving conflict as third parties(such as negotiators, facilitators, mediators and concilia-tors) in all fields of practice, taking into account thediffering needs of diverse cultural groups.

CCDale BagshawDirector

The deadline for articles for the next issue of MediationNews is 30 April 1999.

Please send articles, letters, news items, book reviews(preferably on Disk) to:

Mediation News,Rebecca Gleeson,PO Box A2468SYDNEY SOUTH NSW 1235

Deadline for Articles forNext Issue of Mediation News

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Mediation News – December 1998

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Conflict Resolution Network –CommunityBased ProjectsPO Box 195 Chatswood, NSW, 2057.Contact: Robyn Gaspari: ph. (02) 94198012 Fax. (02) 9419 4305

Mediation and group facilitation - 4 daycourse ($180), covers workplace mediationand grievance handling, communityconsultation and alternative disputeresolution.

QUEENSLANDAlternative Dispute Resolution Branch,Department of Justice, QLDGPO Box 149, Brisbane, QLD, 4001.Contact: Peter Johnstone: ph. (07) 32396277 Fax. (07) 3239 6284.

Mediation skills course - 5 day course, cost$1195 (catering included), introductorycourse developed for people wishing to gainbasic understanding of mediation processand essential skills.

Relationships Australia - QLDPO Box 595, Spring Hill, QLD, 4004.Contact: Mike Brandon: ph. (07) 38312005 Fax. (07) 3839 4194

Advanced Family Mediation - 28 hourcourse ($700)

SOUTH AUSTRALIAUniversity of South Australia – ConflictManagement Research Group.St Bernard’s Road, Magill 5072. Contact:Dale Bagshaw – phone 08 8302 4375; fax08 8302 4377, email –dale.bagshaw@unisa.edu.au Website addresswww.unisa.edu.au/submenu/course.htm__http://www.unisa.edu.au/submenu/course.htm_

Training workshops and consultancies fororganisations, tailored to need –communication, conflict management,mediation, conciliation – 2 hours to 5 days.Specialist training in sexual harassmentfacilitation, family mediation, conflictmanagement in: corrections, policing,juvenile justice, child welfare/protection,schools, human resource management,courts, the workplace or industrial relations.University courses/Continuing Educationoptions available (see below).

CCLEADR

National Dispute Centre,Level 4, 233 Macquarie Street, Sydney,NSW, 2000. Ph. (02) 9233 2255 Fax. (02)9232 3024

Mediation workshops - 4 day course -teaches mediation skills and philosophy.

Issues and Techniques in Familymediation and Interpersonal disputes.

Mediate TodayContact: Lorraine Djurican:Ph. (02) 9223 2255 Fax. (02) 92236058

Relationships Australia – NSW5 Sera Street, Lane Cove, NSW, 2066,Contact: Linda Fisher/Valetta Turner:(02) 9418 8800 Fax: (02) 9418 8726

Family Mediation Training Programme- 6 day course ($1250)

Mediation Course – 6 weeks, includes20 hour placement ($2250)

Advanced Mediation TrainingProgramme ($500)

Mediation Supervision TrainingProgramme ($550), supervisedmediation through co-mediation alsoformal supervision

Continuing Education – various topicsincluding: Assessing Effectively andterminating gracefully ($35); CrossCultural and Aboriginal Issues ($70);Mediator Burnout (435); Children inMediation ($35); TransformativeMediation ($70).

VICTORIABarwon Parent & Youth MediationServiceGeelong, Victoria.Contact: Chris Halls:ph. (03) 5223 2966Fax. (03) 5229 0102

Professional Mediation Training –3 day course ($160)Mediation available for parent/adolescent at no cost. Peer mediationavailable to schools.

Council of Adult Education,Community Programmes Department256 Flinders Street,Melbourne, VIC, 3000.Contact: Margaret Jones/Muriel SuttonPh. (03) 9562 0629 or(03) 9562 0799

Mediation an Introduction – 12 hourcourse, introductory course for peoplein management roles and humanservices field.

Dealing with Conflict – 5 weeknightcourse, improvement in skills andconfidence re: conflict management.

Dealing with anger and communicatingacross cultures in workplace – coursesalso available.

Family Mediation CentreNoble Park, Victoria.Contact: Marie Garric:ph. (03) 9547 6466Email: family@mediation.com.au__family@mediation.com.au_http://www.mediation.com.au

Family Mediation Training Courses,including Family Law and ParentAdolescent workLevel 1 18th, 19th & 20th February

1999Level 2 29th, 30th April & 1st May

1999Cost: $500 for each level, with 10%discount if a deposit received 10 daysprior to commencement.

No dates have been set for workplace/grievance management training howeverthese courses are still being offered.

Effective Grievance Management Training– 3 day course ($500), understandingthe nature of workplace grievance andtheir effects on organisations andindividuals. Learn how to design effectiveapproaches to the management ofgrievance.

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15

Mediation News – December 1998

International Conflict ResolutionCentreUniversity of Melbourne, CarltonCampus.Contact: Margaret Clark:ph. (03) 9344 7035Fax. (03) 9347 6618. Various courses:

Mediation in schools – 30 hour course,January 1999,

Contact: Pat Marshall:ph. (0359) 685 414, for primary andsecondary school teachers andcounsellors.

Mediation short course – 40 hour, 13week course,Contact: Diana Pittock:ph. (9592 1907, Practical and theoreticaltraining for professionals – lawyers,managers, teachers, social workers andcommunity workers.

Managing Conflict in Planning –Contact: Robin Saunders:ph. (03) 9853 7510, Dispute resolutionand facilitation skills for planners(including local government).

La Trobe UniversitySchool of Law & Legal Studies, Bundoora,VIC, 3083.Contact: Tom Fisher:ph. (03) 9479 2423, (03) 9479 2755,Fax. (03) 9479 1607.email: T.Fisher@latrobe.edu.au

Family Law for Mediators – total feesapprox $6,000, each subject $1,000 -subject forms part of the Graduatediploma in Family Law but is open topractising mediators and others needing agrounding in relevant issues of family law.

Relationships Australia – Victoria46 Princes St, Kew.Contact: Ena Shaw: (03) 9484 9775

Intermediate Mediation course – 3 daycourse ($695), includes cultural issuesand intake procedures.

Introductory Mediation course – 2 daycourse ($595), includes the separationprocess and the effects of separation onchildren.

NEW SOUTH WALESSouthern Cross UniversityLismore & Coffs Harbour campuses andexternal study.Bachelor of Social Science withCounselling and Mediation Studies Major- 3 yrs full time, 6 yrs part time, contact:Marilyn Ryan: (066) 203 133.Bachelor of Legal Studies, DisputeResolution Major, contact: Anne MareeSharkey (066) 203 107.

University of Western SydneyMacarthur, Sydney. Contact: LindaFisher: ph. (02) 9418 8800Graduate Certificate of Mediation, 1 yrpart time.Graduate Diploma of Mediation, 2 yrspart time.

Charles Sturt UniversityPO Box 588, Wagga Wagga, NSW,2678. Contact: Course co-ordination: ph.(069) 33 2513 Fax: (069) 33 2790.Graduate Certificate in CommercialDispute Resolution, 1 yr part time courseby distance education.

University of TechnologyFaculty of Law, Post Graduate studies,Level 3, 645 Harris Street,Ultimo, NSW 2007.Contact: Marilyn ScottPh. (02) 281 2699Fax (02) 281 2127Graduate Certificate in DisputeResolution, 1 yr part time ($3,200)Master of Dispute Resolution, 2.5 yrspart time ($7,200)

Macquarie UniversityMacquarie Graduate School ofManagement, NSW, 2109.Contact: Anne-Marie Hodson,Ph. (02) 9850 9027Fax. (02) 9850 9022Post Graduate Diploma in ConflictManagementMacquarie University School of Law alsooffers various courses (DisputeManagement and Resolution,Environmental Litigation andMediation):Contact: Frank AstillPh. (02) 9850 7076

SOUTH AUSTRALIAUniversity of South AustraliaThe following 3 courses are in a nestedarrangement, give credit for prior studyin the area (including post-graduate legalpractice courses), and offer a wide choice

of subjects. Payments made on a semesterbasis for subjects taken. Interstate/overseas applicants with an undergraduatedegree (or equivalent study and/orexperience) welcomed. Applicants fromall disciplines eligible.

Graduate Certificate in Mediation(Family) - est. since 1993, 1 yr half time,3 subjects (Mediation Process, Concepts& Skills and Advanced Family Mediationñ both taught in 5 day blocks, Family Lawfor Mediators in external mode). Total fee- $2,850.

Graduate Diploma in ConflictManagement - 1 yr full time or 2 yrs halftime. Supervised Field Practice optional.Some subjects external mode and othersin 5-day blocks. Wide range of subjectchoice. Total fee - $5,700.

Master of Conflict Management1.5 yrs full time, 3 yrs part time. MinorThesis - optional. Credit given forrelevant Graduate Certificates andDiplomas.

Some subjects common to these coursesavailable as Continuing Educationoptions for a fee.

Master of Social Science (Research) andPhD courses are also available tointerstate students.

Inquiries: Faculty of Humanities andSocial Sciences,Magill Campus,St Bernard’s Road, Magill 5072.Ph. (08) 8302 4424,Fax. (08) 8302 4395 or e-mail:humanities@magill.unisa.edu.au;humanities@magill.unisa.edu.au;_mailto:dale.bagshaw@unisa.edu.au__dale.bagshaw@unisa.edu.au_

Website address for information aboutthese courses – http://www.unisa.edu.au/submenu/course.htm

VICTORIALa Trobe UniversitySchool of Law and Legal Studies,Bundoora, VIC, 3083. Contact TomFisher/Ted Osborne (03) 9479 2755,(03) 9479 2423 Fax (03) 9479 1607 ore-mail: T.Fisher@lastrobe.edu.au

Graduate Diploma in Family LawMediation, 2 yr part time ($6,000)Graduate Diploma in Conflict Resolution,2 yr part time ($6,000)Graduate Certificate in ConflictResolution1 yr part time ($3,000)

Graduate Certificate in Conciliation andOmbuds Strategies (pending approval), 1yr part time ($3,000)

NIVERSITY CERTIFICATESDIPLOMA, DEGREESUUOURSES &TRAININGCC

SADRACommitteeChairpersonDale Bagshaw (08) 8302 4375Fax (08) 8302 4377email: Dale.Bagshaw@unisa.edu.auTreasurerJohn Steele (08) 8340 1982Fax (08) 8346 9477Mediation NewsJohn Connell (08) 8223 4566Fax (08) 8232 2898

CommitteeVirginia LeeuwenburgAssociate Professor Kathy MackFranca PetroneNatalie FullerJoanne EngelDarren McGeachieDavid Baker

VADR CommitteeandOffice BearersPresidentDiana Pittock (03) 9592 1907Secretary & MembershipTim Offor (03) 9662 4023TreasurerLes Lane

CommitteeEileen DethridgeSandy CaspiDanny CrossmanIsla GillespieAmanda PerhamPatricia MarshallJane PictonRobin SaundersBruce Turner

ADRA Board ofManagementPresident/MembershipLouise Rosemann (042) 943 259Vice PresidentRhonda PaygetSecretaryDavid HolstTreasurerVal Sinclair

NewsletterRebecca Gleeson 0414 706 865Stella SykiotisAlan TidwellChristine JamesIan McKendryUrsula SchiappiAlan ParkerPaul Lewis

The deadline for articles for the next issue of Mediation News is 30 April 1999.Please send articles, letters, news items, book reviews (preferably on Disk) to:

Mediation News, Rebecca Gleeson, PO Box A2468 SYDNEY SOUTH NSW 1235

Deadline for Articles for Next Issue of Mediation News

A Joint Project ofAustralian Dispute Resolution Association Inc. (ADRA)

South Australian Dispute Resolution Association (SADRA)Victorian Alternative Dispute Resolution (VADR)

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Mediation News September 1998