The History of Mediation in Queensland

Queensland through the twentieth century had retained a very traditional litigation system based closely on English practice. It centred around an adversarial system of dispute resolution, a system that resembled a gladiatorial contest.

However, in the mid to late 1980’s a new phenomena burst onto the Queensland legal scene. At the time there were increasing concerns that court processes based on the long established adversary system were becoming too lengthy, too expensive, and failing to effectively deal with the real issues. This coincided with increasing congestion of court lists and lengthy listing times for hearing (it was frequently said in Queensland amongst the legal profession in the early 1990’s that one would expect to wait between 3 to 4 years to obtain a trial date in the Supreme Court, and in other States there were reports of waiting periods of up to 5 years). In response to these concerns, a new approach garnered intense interest.

This new approach involved a variety of processes known collectively as Alternative Dispute Resolution (“ADR”).

Born in the United States of America  from the 1960’s on, ADR was a new philosophy. It was based around the concept of finding mutually advantageous resolutions to conflict through negotiation. In place of the old combat model where parties were pitted against each other until one defeated the other, this new approach looked to co-operative problem solving as its form of operation. Instead of Win/Lose the outcome was to become Win/Win. Central to the new processes was an emphasis on identifying interests and negotiating resolutions that accommodated the interests of each party.

The primary process of ADR was mediation. This is a process whereby parties meet together in a confidential and comfortable setting, and with the aid of a skilled independent neutral third person (the Mediator) work together to discuss the issues, explore options, and arrive at comprehensive and lasting mutually acceptable resolutions.

The purpose of the discussions was to consider interests rather than focusing on rights.

The intent was that in this way, the rigid, expensive and lengthy process of the courtroom with its multiple players and strictly assigned roles, would be replaced by the efficiency of logical discussion and practical solutions.

When it erupted, ADR entered the Australian legal scene with excitement and anticipation, like a meteor entering the stratosphere accompanied by a shower of sparks.

Throughout the decade of the 90’s we saw Mediation and ADR discussed, analysed, experimented with, adopted and entrenched. This process continued through the 00’s. Today we see Mediation being used as a basic resolution process, and entrenched in Court and Tribunal processes as a gateway step.

One of the principal documents that initiated the flood of ADR development in Australia, particularly with respect to commercial matters, and resulted in it being brought it to mainstream attention, was a Report to the Attorney-General of New South Wales in 1986 on “Results of A Survey of Business Needs and Attitudes” by Michael Ahrens, a partner at Baker and Mackenzie, Solicitors.¹

A Consultative Committee had already been established in 1985 by the New South Wales Attorney-General to investigate the establishment of a Commercial Disputes Centre to facilitate the resolution of commercial disputes otherwise than by recourse to the court system.

In a commercial environment, the concern was that the litigation process caused a lack of business and industry efficiency. ADR was seen as a way of letting business take charge of and solve disputes, and then get on with business:-

“In the context of commercial disputes, the basic premise of ADR is that commercial disputes are essentially business problems capable of resolution by businessmen rather than lawyers, and that businessmen are capable of negotiating commercially satisfactory solutions to most problems, provided that they are fully briefed with the relevant facts.

One unfortunate aspect of commercial litigation is that often the senior executives with the clearest idea of their company’s best interests, and with the authority to settle a particular dispute do not know and do not investigate the facts of the dispute until it has been in the hands of outside lawyers for considerable periods, until substantial costs have been incurred, and until final hearing of the matter is imminent. Meanwhile, any business relationship with the other party has often been irreparably damaged, and avenues for solutions other than the judgment of the Court are effectively foreclosed.

ADR’s further goal is to avoid the problems associated with commercial litigation by assisting parties to overcome the deep-seated notion in dispute psychology that attempts to initiate settlement discussions or to seek compromise are a sign of weakness or a lack of confidence in the strength of one’s case or bargaining position.”²

Subsequently the Australian Commercial Disputes Centre (ACDC) was established in Sydney as a non-profit organisation with a charter to introduce and develop ADR processes in Australia. The Centre later established offices in Queensland and Western Australia.

ACDC maintained lists of persons from a wide variety of disciplines who had undertaken ADR training and were prepared to act as facilitators and mediators. This included Solicitors, Barristers, Accountants, Engineers, Quantity Surveyors and Businesspeople.

From the outset, the policy of widening the avenues of dispute resolution to encompass other professionals caused a significant element of angst amongst the legal profession. The profession was quick to respond and this led to the development of groups such as LEADR (Lawyers Engaged in Alternative Dispute Resolution) and the Bar Dispute Resolution Services.

In 1991 the Executive Officer of LEADR stated that:-

“Other professions are becoming very active in the promotion of alternative dispute resolution to their members and to their clients. The writer knows of engineers, accountants, surveyors, loss adjusters and social workers, all of whom are now trained as mediators and who are offering mediation as part of their consultancy services. Many of those professions also offer assistance in negotiation of disputes to their clients and negotiation assistance for contract formation where they include dispute resolution clauses. In fact, the utilisation of ADR by other professions is one of the motivating factors encouraging lawyers to ensure that they are not left out of this movement!”³

The attraction of ADR led to queries as to whether it could be accommodated within the traditional court system in order to add value to it.

One of the earliest prominent calls for the adoption of ADR on an organised basis, and its integration with the Court system, came from Justice Paul de Jersey (then a Supreme Court judge, and now the Chief Justice of Queensland). In an article in the “Australian Law News” in 1989, he wrote in relation to ADR that:-

“The legal profession and the courts would be foolish to ignore this phenomenon. It is still new here, and a continuing exuberant scepticism may not be a bad thing. But the phenomenon should be promoting the profession to earlier active attention to negotiation, and the courts to more streamlined case management.

How should the courts be responding to these developments? The courts, and the governments which fund them, must be astute to preserve the institution which provides the best guarantee of a just adjudication, and that is the court system. But obviously the courts must look to better case management, wherever possible taking early control of cases, maintaining regular supervision of them, exploring the prospect of mediation, scheduling steps within short but realistic time limits, and avoiding adjournment, all with a view to securing an early trial only where necessary and then confined to points truly in issue and of significance. It is my own view that judges should these days also be prepared to act as catalysts in the settlement of civil litigation, and that courts should consider — as we have done in Queensland — introducing machinery for compulsory mediation in appropriate cases. Finally, the courts (and governments) should keep in mind the possibility of the future introduction of court-annexed arbitration facilities such as have worked with apparent success in the United States, although such a development would seem premature at this stage of our development.

I certainly do not think that ADR should be dismissed as mere gimmickry. Its designation as “alternative” may be unfortunate, in suggesting a species of dispute resolution mechanisms separate from the court. The American experience suggests rather that it may work very effectively in a manner complimentary to traditional litigation, indeed enhancing the effectiveness of the latter and the prospect of ultimate justice.”⁴

As ADR came to establish a track record of reliability and proved effectiveness, increased calls came to integrate it into the ordinary process of the courts. The rationale was that ADR would act as a “filter” to accelerate settlements in those matters that would have settled in the ordinary course of events, thereby freeing and reducing the court lists and making the administration of the Courts easier and more efficient. In this way, matters which truly required a judicial decision could proceed to that end without the clutter of the mass of the cases on the list.

This integration led to the institutionalisation of ADR, of working it, as Sander puts it “into the warp and woof of the dispute processing system”⁵ so that alternatives are systematically considered at various points by disputants, lawyers, courts and administrative agencies.

In Queensland the Litigation Reform Commission had established an Alternative Dispute Resolution Division in 1991. By that time they were able to state that:-

“The benefits of alternative dispute resolution (“ADR”) are now well recognised. Over the past ten years a great deal has been written about it and a great number of proposals made, but our courts have not yet introduced a co-ordinated system that takes advantage of these alternative methods. Perhaps too much has been written and too little done on the subject.”⁶

Their Report recommended (amongst other specifics) that:-

• the Supreme, District and Magistrates Courts should expressly be given the power to require litigants to attempt to settle their claims by means of a specified form of alternative dispute resolution
• all judicial officers should have the prescribed discretion to refer
• Rules of Court should be made to confer powers of referral on the Supreme, District and Magistrates court
• Legislation should be introduced to guarantee the immunity from suit of persons participating in the process, and to ensure confidentiality and secrecy
• The ultimate right of any party to insist upon a court determination should not be curtailed
• These new procedures should be regarded as a three—year pilot project, and their operation reviewed after twelve months.

The report resulted in changes to the operations of Queensland Courts to incorporate ADR procedures, and also heralded a broadening of the mission of those Courts. In commenting on the report in 1995, Davies JA, who was a strong proponent of incorporating ADR procedures, noted that:-

“I have previously made the point that most judges and litigation lawyers have a concept of dispute resolution which is at variance with that of the litigating public. The former tend to see it primarily as the product of a trial or of settlement of a case, generally at an advanced stage of the existing litigation process. On the whole they tend to give little thought to whether that process is providing a fair result at a price the litigating public can afford. The litigating public, on the other hand, I believe, look for resolution of their disputes by the cheapest and quickest means consistent with reasonable fairness. Not even the most ardent supporter of the present system could claim that it achieves that.

I do not mean to imply by this that the sole function of the judiciary should be to decide disputes in the cheapest and quickest way consistent with reasonable fairness. On the contrary it also performs the important function of maintaining and developing the law. But given that most civil cases are decided by the application of a settled principle to the facts as found by a judge, the view of dispute resolution held by most judges and litigation lawyers is much too narrow. One result of this narrow view has been that most reform proposals focus on shortening the traditional trial process, such as by case management, rather than on providing alternatives to it.” ⁷

Subsequently, the “Courts Legislation Amendment Act 1995” was introduced. This Act provided for court-annexed mediation and case appraisal in the Supreme, District and Magistrates courts.

In an article that Nadja Spegel and I wrote in 1995, we noted that:-

“The extent of the overall package for introduction of ADR into Queensland courts is believed to be unparalleled in any other jurisdiction. Whilst other States have introduced trial or pilot programmes on a limited basis, or general enabling legislation, this is a comprehensive and complete introduction and adoption of these processes. The hallmarks of the ADR processes, as indicated by s.100A, are to assist parties to achieve negotiated settlements and satisfactory resolutions of disputes; to improve access to justice for litigants and to reduce cost and delay by the introduction of ADR processes into the court system; to allow these ADR processes to be conducted as quickly, and with as little formality and technicality as possible. The legislation further aims to ensure that ADR processes remain confidential and that the participants have the same protection they would have if the dispute were before the court.”⁸

The introduction of formalised ADR into the Court system in this comprehensive manner must have proved to be a worthwhile initiative, such that they were further entrenched in the next most significant rewrite of the Queensland Court Rules.

There had been a major review of the whole of the rules of all Queensland Courts continuing through much of the late 1990’s. This culminated in the introduction of the “Uniform Civil Procedure Rules 1999” which applied to the Magistrates, District and Supreme Courts.

The aim of the Uniform Rules is set out in rule 5 as “just and expeditious resolutions of the real issues in civil proceedings at minimum of expense” and “avoiding undue delay, expense and technicality”. Practitioners are directed in r 5(3) that “in a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way”.

This definition of the mission of the Courts is very much wider than the description that would have appeared at the start of the decade, when the proper conduct of trials would have been seen as the Court’s primary object. It is apparent that the changes that Justices De Jersey and Davies had called for in the focus of Judges and the Courts, were being effected in a very real way.

The Rules contained provisions as to Mediation, Case Appraisal and settlement offers. The rules as to Mediation and Case Appraisal are contained in Chapter 9, part 4. Mediation or Case Appraisal may either be voluntary, or ordered by the court.

The institutionalisation of ADR, and its incorporation into the processes of the State Supreme, District and Magistrates Courts, and various tribunals, as well as the Federal Courts, has resulted in a volume of commercial mediation being conducted in the course of, or related to, actions in those courts — in the shadows of the court.

I interviewed Mr. Ian Hanger Q.C. on these topics in 2001. He was probably then, and probably still is, the leading commercial Mediator in Queensland. Mr. Hanger said then that he had an almost exclusive Mediation practice. He believed that there has been a revolution in the approach of lawyers to the way they practice law since the advent of ADR, and a change in Society. He nominated a major national law firm at the time which had a policy of not briefing a Barrister who was not familiar with Mediation. Further he said that “the Bar will never be the same, and the practice of Law will never be the same”.

Many Tribunals incorporated ADR processes into their procedures. Examples of these included the Retail Shop Leases Tribunal, the Residential Tenancies Authority, the Building Industry Tribunal, the Retirement Villages Tribunal, the Land and Resources Tribunal, and the Native Title Tribunal.

This has led to the clearest expression of the total integration of ADR processes in the establishment and operations of the Queensland Civil and Administrative Tribunal (QCAT) which commenced operating on 1 December 2009. It incorporates 18 former Tribunals, and approximately 300 different kinds of applications and proceedings relating to over 200 pieces of legislation can be brought before it.

The Queensland Civil and Administrative Tribunal Act 2009 provides in S.3(b) that one of its objects is to “have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick”. To do this, S. 4(b) provides that to achieve its objects the tribunal must “encourage the early and economical resolution of disputes before the tribunal, including, if appropriate, through alternative dispute resolution processes”.

QCAT uses a wide variety of ADR processes. One of the principal means is Mediation which is provided for in Division 3 of the Act.

In many of the Tribunal models, mediation and conciliation procedures are conducted by full-time employed staff — this is the case with the Residential Tenancies Authority for example.

In several Court models, a great deal of mediation, (through the instrument of pre-trial conferences, or compulsory conferences), has been conducted by Registrars — examples include the Federal Court of Australia, the Family Court of Australia and the Planning and Environment Court in Queensland.

One of the current high-water marks can be seen in the Civil Dispute Resolution Act 2011 (C’wealth) under which litigants to matters in the Federal Court of Australia and the Federal Magistrates Court must file a statement setting out the genuine steps they took to resolve their dispute and, if they took none, to explain why. The Attorney-General Robert McClelland said that the reforms would fundamentally change the way people resolve issues in the Federal Courts and said “Australia’s legal system is changing — we are moving away from an adversarial culture of litigation to a resolution-based approach to disputes” .⁹

There has been significant structural change in the procedures of the Courts and Tribunals, and there has been the development of a wide variety of alternative processes and procedures.

There can be no doubt that the practice of law in Queensland has in fact been markedly altered in an enduring way.

Since the introduction of ADR processes, the process of dispute resolution has become diversified, and now encompasses a wide array of Courts, Tribunals, Industry schemes, and private mediations.

Looking back on these 22 or so odd years of development, it is clear that Mediation has fulfilled many of its hopes and promises, and is now here to stay as part of our overall dispute resolution system.

David Paratz¹⁰

BA./LL.B. LL.M.

Footnotes

1. Ahrens “Results of a Survey of Business Needs and Attitudes” Baker & McKenzie, Sydney 1986
2. Ibid p.9
3. David “ADR — The Professions, Government and Academia” paper presented to Queensland Attorney-General’s Symposium 23 April 1991
4. de Jersey, Alternative Dispute Resolution, The Australian Law Journal, Vol 63 February 1989, p. 69 at p.71-72
5. Sander, The Challenge of Institutionalization: The USA Perspective, a paper presented to the First International Conference in Australia on Alternative Dispute Resolution, 1992
6. Report of Alternative Dispute Resolution Division Litigation Reform Commission 1992 p.1
7. Davies “A Blueprint for Reform: Some Proposals of the Litigation Reform Commission and their Rationale” paper presented to the 29^th Australian Legal Convention, 27 sep 1995 at p.1
8. Paratz & Spegel, Courts Introduce ADR, The Queensland Lawyer, Vol 16, August 1995, p20 at p.21-22
9. Attorney-General Media Release, 01 August 2011
10. The author is a Barrister and Mediator of 30 years standing, with particular experience in commercial and public interest disputes. In 1989 he was appointed as the founding Manager of the Queensland office of the Australian Commercial Disputes Centre. He held that position until 1985, and has practiced as a Facilitator and Mediator since that time.