Mark England

INTRODUCTION & OVERVIEW

• ‘While there are numerous ADR innovations, ADR remains significantly under utilised in many areas, and its overall use can be patchy and idiosyncratic’ NADRAC 2009

• From a quantitative analysis of the titles of legislation in Australia the conclusion is reached in support of the NADRAC 2009 observation that the overall use of ADR in Australia is patchy and idiosyncratic.

• Only the ACT makes an attempt to introduce mediation as a framework approach however there is no evidence that his is seriously adopted in the ACT.

• One means of assessing the progress of a nation as one able to resolve disputes amicably is to assess the extent to which mediation is built into its social fabric.

• On the basis that mediation encourages recognition and respect of parties to a dispute and hence ultimately builds healthy relationships for individuals and communities, an analysis of titles sought the term mediation.

• This is a basic quantitative measure of the extent and pattern of mediation in Australia.

• No Commonwealth of Australia Consolidated Acts or Regulations have the term mediation in the title;

• The Australian Capital Territory (ACT) has an umbrella Mediation Act 1997;

• NSW has the Farm Debt Mediation Act 1994, but no other Acts or Regulations with the term mediation in the title;

• The Northern Territory has the Care and Protection of Children (Mediation Conferences) Regulation, but no Acts with the term mediation in the title.

• Mediation has not been fundamentally integrated into the ACT legal system as a basic approach to solving disputes and building social relationships.

• Other than for the ACT, mediation titles show its inclusion for Australia in: • Commercial negotiation • Care and protection of children

• British law does not have a history of practice of incorporating mediation.

• Australian and particularly New Zealand legislation is

advocacy orientated

• Other countries are enshrined in mediation, including China, Japan, the Republic of Trinidad and Tobago and Germany

• Japanese society is built on a desire for mediated harmony between people and with the environment.

• Mediation primarily aims to achieve a creative solution that meets the needs of both parties rather than a solution through the making of concessions.

• Mediators from a variety of professional fields with

rich experience in public life are often best able to find realistic solutions to everyday life problems.

• Mediation was historically used, if at all, in some environmental or divorce related disputes.

• 1 January 2000 all German states were provided with permission to introduce court-connected mediation on a mandatory basis for certain civil disputes.

• Mediators tend to be lawyers or notaries. There is a pressing of the parties to reach agreement through mediation that may involve giving trading concessions rather than seeking creative alternatives.

Germany

• The Republic of Trinidad and Tobago introduced a Mediation Act in 2004.

• Through court-annexed mediation under the Act, the court may refer a matter to mediation and Community Mediation Centers exist throughout the Republic.

• Matters for mediation include:

– Landlord/Tenants

– Merchants/Consumers

– Small Claims (Quantum to be determined)

– Threat and harassment problems

– Neighborhood problems

– Family and Relationships disputes, for example, Visitation Rights, Access, Custody and Maintenance

– Small Contractors and Home Owners

– Community Disputes

– Juvenile conflicts including truancy and delinquent children

Trinidad and Tobago

• Encourage co-operative engagement between health and non-health sectors. In addition to justice, mediation was recognized by the ACT parliament as being linked to health and wellbeing as building blocks for society.

• Mediation allows those who do not have a voice in the traditional legal system of litigation and arbitration framework to resolve disputes in a manner that enhances personal, interpersonal and community self-esteem.

• Areas that impact on wellbeing in Australian society include families, the aged, industrial relations, indigenous people, treatment of non-human animals and the environment. Of these there is some mention of families only in the Northern Territory associated with mediation conferences for the care and protection of children.

Mediation as a Fundamental Approach