Ethics Of Australian Mediation Essay, Research Paper

INTRODUCTION – THE OBJECTIVE OF FAIRNESS

On the 31st of March 2001, Attorney-General, Daryl Williams, launched the National Alternative Dispute Resolution Advisory Council’s (NADRAC) discussion paper on The Development of Standards for Alternative Dispute Resolution . Among the core objectives for ADR highlighted by NADRAC in this document was that ADR uses a process which is considered by the parties to be fair. This objective of fairness is reflected in NADRAC s 1997 paper entitled Alternative Dispute Resolution Definitions , which defines mediation in the purely facilitative sense as:

a process in which the parties to a dispute, with the assistance of a neutral third party (the mediator), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. The mediator has no advisory or determinative role in regard to the content of the dispute or the outcome of its resolution, but may advise on or determine the process of mediation whereby resolution is attempted.

Whilst the term fairness is not easily defined , within the context of mediation it is generally understood to encompass the notions of neutrality and impartiality on the part of the mediator and the concept of confidentiality throughout and subsequent to the mediation. However, these ethical requirements of the mediation process are limited in a number of ways.

DEFINING NEUTRALITY AND IMPARTIALITY

The terms neutrality and impartiality are often used interchangeably, although neutrality generally relates to the nature of the involvement of the mediator , whilst impartiality is usually used to denote a lack of favouritism or bias . Provisions, such as, the mediator shall before and during mediation process disclose to the parties any circumstances which may cause or have any tendency to cause a conflict of interest and, mediators are committed to assist all parties in reaching a mutually satisfactory agreement and not to favour any one party over another reflect the notions of neutrality and impartiality respectively. Despite the distinction, however, there is clearly some element of overlap between these two concepts.

DISPLAYING NEUTRALITY

A mediator might be regarded as neutral where they approach the subject matter of the dispute with an open mind, free of preconceptions or predisposition towards either of the parties . The importance of an appearance of neutrality is that the parties can be satisfied that the mediator is not biased against them, and that they can trust the mediator to conduct the process fairly. In this sense, the concept of neutrality is closely linked to that of impartiality. Neutrality requires that the mediator disclose to all parties whether there is any:

existing or prior relationship between the mediator and any party;

other prior contact between the mediator and the parties;

interest in the outcome of the particular dispute;

likelihood of present or future conflicts of interest; or

personal values, experience or knowledge of the mediator which might affect impartiality, given the nature of the subject matter and the characteristics of the parties.

IMPARTIALITY

In a strict sense, whilst neutrality is a question of interest, impartiality is instead a matter of behaviour. It relates to the retention of the confidence of the parties based on their perception that they are treated fairly by the mediator throughout the process. Thus, impartiality refers to the skills of a mediator necessary to balance the relationships with and between the parties, to create trust in both the process and in themself, and to ensure fairness for all parties involved. In addition, if there exist any limits on the requirement of impartiality, these should be clearly explained to and understood by the parties. Impartiality requires the mediator to:

conduct the process in a fair and even-handed way, treating the parties equally by spending approximately the same time hearing one statement as others or approximately the same time in separate session with both parties;

not accept advances, offers or other gifts from parties;

give advice or allow representation, support or assistance equally to parties;

organise the venue, times or seating in a way which suits all parties.

display sincerity and integrity, whilst building and maintaining trust; and

avoid any appearance of partiality or bias through word or conduct

LIMITATIONS OF NEUTRALITY AND IMPARTIALITY

BIAS

Bias may occur within mediation on various levels and if unchecked, can critically affect the fairness and justice of the proceedings and the degree of user satisfaction with the process and outcomes. For the purposes of this essay, two main types of bias have been recognised:

1) Personal bias in the mediator, including actual and perceived bias; and

2) Procedural bias

1) PERSONAL BIAS IN THE MEDIATOR

This may be actual or perceived.

(a) ACTUAL BIAS

Actual bias arises directly, albeit unconsciously, from individual socialisation and related prejudices. To advance fairness within mediation, mediators must be conscious of their own point of view , and its possible impact upon the mediation. Personal bias can be both passive and active. An example of passive bias might be where, in support of a preferred participant or outcome, a mediator fails to redress power imbalances, or problems of access or information.

(b) PERCEIVED BIAS

As the label indicates, perceived bias is an impression of favouritism arising in mind of a party to the mediation. A number of factors can potentially generate perceived bias, such as, words, expressions, signals inadvertently given or favours extended. Despite being more subtle than actual bias, perceived bias can be equally destructive of the trust between the mediator and the participants. Members of minority groups may perceive bias as an inherent aspect of their marginalised position in society, whilst conversely, individuals from more mainstream sections of society may perceive bias because they may feel more entitled to have their views and perspectives recognised and implemented.

2) PROCEDURAL BIAS

This includes the possibility of the mediation process to empower or disempower people and to favour one participant over another. Where one of the parties to a mediation is an articulate, English speaking, well educated television journalist, the emphasis upon direct face-to-face negotiations in mediation will give that person a considerable advantage over an elderly unemployed person whose first language is not English. Unless this imbalance is recognised and addressed, neither the process nor the outcome are likely to be fair or just.

Notwithstanding their neutral role in mediation proceedings, mediators may sometimes direct the proceedings in more subtle ways of which the participants may be unaware. For instance, whilst despite not actually supporting a preferred outcome through suggestion or evaluative analysis, they may do so indirectly by: failing to redress power imbalances between the participants; phrasing questions in inappropriate or biased terms; allowing the participants greater time to consider certain questions; and being more facilitative during the ensuing discussions of particular questions by the participants.

NEUTRALITY AND ASSISTANCE

In one sense, absolute neutrality may not be consistent with established mediation procedure. Whilst the mediator is required to remain neutral, he or she is also expected to assist the parties and advise on or often determine the process of the mediation. NADRAC has observed that `in some instances dispute resolvers must intervene in order to ensure that power imbalances are addressed, procedural fairness maintained and fair and just outcomes encouraged’. Perceptions of what is fair may differ between mediators according to personal value systems. For instance, a mediator could intervene during a mediation to `protect’ a party perceived to be `weaker’. In such situations, there is clearly a balance or equilibrium which must be struck to maintain fairness in each instance. Obviously there would be no question as to the fairness of securing an interpreter for a party who cannot understand or speak English well enough to participate equally in the mediation.

Clearly, whilst neutrality and impartiality are fundamental elements of mediation, the promotion of substantive equality between parties, with the result of increasing the likelihood of satisfaction with the outcome, does not necessarily jeopardise the neutrality of the mediator.

CONFIDENTIALITY

Although often championed as an important and functional necessity of mediation, confidentiality is not universally guaranteed within such processes. Confidentiality, both internal to a mediation and subsequent to a mediation, is protected by common law privileges and statutory provisions. This protection is however substantially limited by court decisions and legislation.

CONFIDENTIALITY WITHIN A MEDIATION

Confidentiality within mediation applies to the mediation session as a whole and may prevent a mediator from disclosing information conveyed in a joint session to any source external to the mediation. It may also apply to situations internal to the mediation, preventing the mediator from revealing information conveyed in a private session by one of the parties to the other party. Confidentiality may also apply to witnesses, experts and other persons involved with a mediation, who are not party to the Agreement to Mediate.

The requirement of confidentiality within mediation stems from the inherent need for the parties to assist the mediator in the facilitation of the process. A party may wish to disclose to a mediator information central to the resolution of a dispute without revealing the information to the other party or to parties external to the mediation. In such a situation, the mediator may be bound to keep this information confidential through an Agreement to Mediate stipulating such confidentiality , any relevant legislation , or the law of equity .

LIMITATIONS OF CONFIDENTIALITY WITHIN A MEDIATION

Whilst legislation may provide protection for the confidentiality of joint and private mediation sessions, this confidentiality may be severely limited by provisions providing justification for partial or total non-adherence to confidentiality. Indeed, some legislation places upon a mediator a duty to disclose confidential information in certain circumstances. Additionally, legislation may also provide situations in which a mediator may choose to disclose information if they have a reasonable excuse to do so.

Confidentiality may be further limited by the requirement that a mediator must report on the mediation to relevant courts, tribunals or agencies. This may be case with court-ordered mediation, legal aid services and community justice programs. The mediator may have to disclose the outcome of the mediation, and in some situations, the conduct of the parties at the mediation.

CONFIDENTIALITY FOLLOWING A MEDIATION

The protection afforded to confidentiality subsequent to a mediation by common law privileges and legislative provisions is limited in it s application.

THE LIMITATIONS OF COMMON LAW PROTECTION

(1) THE WITHOUT PREJUDICE PRIVILEGE

A communication made in the course of negotiations, with the honest aim of settling a dispute, may be inadmissible as evidence in subsequent court proceedings relating to the same subject matter. This without prejudice privilege applies to mediations and may be applied to communications where no settlement is reached. Where a settlement is reached at a mediation, the without prejudice privilege does not apply and all communications may be admissible in subsequent court proceedings to determine the agreement reached.

There are further limitations, which govern when without prejudice communications are admissible in subsequent litigation. Where statements made during a without prejudice negotiation are unqualified admissions concerning objective facts then they may be admissible. Statements made not concerning the same subject matter as the negotiations or constituting criminal conduct are admissible. Communications branded as an offer and acceptance creating a contract or constituting tortious conduct are also admissible. Where the circumstances in which the statement was made cannot be objectively considered as part of the negotiations or where they must be disclosed to prevent a party from misleading the court then they are admissible as evidence. Furthermore, where a party engages in conduct contravening s52 of the Trade Practices Act, communications become admissible.

A further limitation was outlined in AWA Ltd v Daniels . The two interlocutory judgements imply that something discussed or disclosed at mediation will not be excluded as evidence where it can be proven by independent evidence before a court or tribunal. That is, facts referred to in mediation are not inadmissible if they are otherwise admissible. This case is however limited to it s peculiar facts by the approach of Rogers CJ.

There is no common law privilege extending without prejudice to those who assist negotiations, such as mediators or third parties. Thus, in the absence of contractual or statutory protection, a third party to a mediation or a mediator would have little protection of subpoenaed. Generally, even with the existence of a private confidentiality contract, the public interest in disclosing the information would outweigh a private contract of confidentiality.

(2) LEGAL PROFESSIONAL PRIVILEGE

Legal professional privilege protects the confidentiality of documents and other communications created for the purpose of legal proceedings or for the purpose of giving or obtaining legal advice. Ss118-120 of the Evidence Act 1995 (Cth) provide that the privilege applies in federal courts if the document was produced for the dominant purpose of preparing for litigation or obtaining legal advice. Esso Australia Resources Ltd v Commissioner of Taxation affirms this dominant purpose approach.

The privilege would extend to mediation in the context of obtaining legal advice and may be waived by a party making a voluntary disclosure to the other side. It is uncertain as to whether the disclosure of legal information to the mediator constitutes a waiver of the privilege.

Thus legal professional privilege is limited to documents created for the dominant purpose of preparing for litigation or obtaining legal advice and will not apply if the party waives the right to the privilege.

(3) PUBLIC INTEREST PRIVILEGE

The public interest privilege, which excludes evidence that would be prejudicial or injurious to the public interest from being admitted into court proceedings, does not at present limit confidentiality subsequent to mediation.

THE LIMITS OF CONTRACTUAL PROTECTION OF CONFIDENTIALITY

Protection of confidentiality through contract law has not been tested in Australian Courts. Most Agreements to Mediate contain confidentiality clauses that prevent the parties and the mediator from disclosing any information or documents used in the mediation. While these clauses are significantly broader than common law privileges, it is likely that some limitations would be imposed on Agreements to Mediate where they are not already written into the agreement. Limitations would also be imposed upon remedies available.

THE LIMITS OF STATUTORY PROTECTION OF CONFIDENTIALITY

Statutory provisions reinforce the common law and may extend the confidentiality of mediation by providing broad coverage for the parties and the mediator. For example, s53 of the Federal Court Act 1976 (Cth) provides that mediation is confidential, documents prepared during the course of or for the purpose of mediation are inadmissible as evidence and that evidence of anything said or an admission made during a mediation is likewise inadmissible. Provisions such as these however usually contain one or more exceptions to the grant of the privilege and have the ability to severely limit the confidentiality afforded to mediation.

An example of a broad limitation on confidentiality is found in the Evidence Act 1995 (Cth). S131(1) of the Act protects without prejudice statements made during the course of a mediation. S131(2)(f) and s131(2)(g) excludes situations where the making of an agreement is an issue and where the evidence is sought to be adduced to contradict other evidence that has been given to the court. These two exceptions may cover a broad number of fact situations and thus have the ability to severely restrict the confidentiality of mediation.

JUDICIALLY IMPOSED RESTRICTIONS ON STATUTORY CONFIDENTIALITY PROVISIONS

Harrington v Lowe examined Order 24 rule 1(8) and 1(9) of the Family Law Rules. A joint judgement held that the confidentiality provisions contained in rule 1(8) denied the Family Court the means of the effective exercise of its jurisdiction to determine whether a miscarriage of justice had occurred. Kirby J, in a separate judgement, held that rule 1(8) was invalid for three reasons. One of these was that the rule was disproportionate to the achievement of it s legitimate objective of safeguarding confidentiality of mediation conferences. In obiter he said that the rule was intended to establish a regime of absolute confidentiality and was bad in it s totality.

Thus, although statutory provisions exist to protect confidentiality of mediation conferences, these provisions are subject to judicial review.

FREEDOM OF INFORMATION

Mediation services provided by government agencies may be subject to freedom of information legislation. This may allow the public to gain access to documents where the government agency is not exempt from freedom of information legislation. Thus, confidentiality within and subsequent to mediations conducted by government agencies may be limited.

CONCLUSION

Neutrality and impartiality may be identified as key elements in mediation. As each of these requirements is potentially subject to limitations within the mediation process, it is important that such limitations be recognised and addressed in order to ensure that the objective of fairness, underlying the mediation process is met.

Similarly, whilst the requirement of confidentiality is a hallmark of the fairness of the mediation process, both statute and common law limit confidentiality within and subsequent to mediation. Legislation may provide for partial or total non-adherence to confidentiality and impose a duty or justification for disclosure of confidential information. It may also provide exceptions to the inadmissibility of confidential information in court proceedings. Judicial interpretation of confidentiality legislation has restricted the broad nature of provisions so as not to restrict the jurisdiction of the court. Furthermore, while the common law protects information through the without prejudice privilege and the legal professional privilege, these privileges have broad limitations and do not protect communication in a large number of fact situations.

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