JUSTICE QUALITY AND
ACCOUNTABILITY IN MEDIATION
Associate Professor Mary Anne Noone & Dr
Lola Akin Ojelabi, School of Law,
National Mediation Conference, Sydney
13 September, 2012
OUTLINE
Background
The research: goals, methodology, participants
and scenario
Disadvantage in mediation
Justice quality in mediation
Procedural and/or substantive justice
Processes for ensuring justice quality
Benchmark for measuring the justice quality of
mediation
Accountability in mediation
Conclusion
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Background
Globally, problems associated with civil justice
systems have led to various reforms including
introduction of ADR as a means of improving
access to justice.
ADR an integral part of the Australian civil
justice system.
Court-annexed dispute resolution schemes
have increased.
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Think of mediation as an important democratic
process. At its best, it allows parties to talk
directly to each other and arrive at solutions to
problems that would not be possible in other fora.
At its worst, it recapitulates the power inequalities
of our society and achieves unfair results for
parties who don’t know what happened to them or
whom to blame.
Menkel- Meadow C., The Many Ways of Mediation: The Transformation of
Traditions, Ideologies, Paradigms, and Practices (1995) Negotiation Journal
217 at 240
Researchers’ access to justice focus
Access to justice:
Equality of access; and
Just outcomes.
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"Indeed the law has been more than inaccessible
and unfair to some groups, but has been an
active agent of oppression and discrimination."
Access to Justice Advisory Committee, Access to Justice - an Action
Plan 1994 para 2.4
We think it important.. that the potential dangers be taken into account
in framing of official programs intended to encourage resort to ADR.
This can be achieved, at least to some extent, by encouraging
appropriate training for mediators and establishing screening
processes to identify parties whose disputes are unsuitable for
mediation.
In addition, we think that it is critical that ADR programs, particularly
those annexed to courts, be regularly evaluated in order to identify
whether any of the potential risks have eventuated and to introduce
measures to correct any identified problems.[ my emphasis]
Access to Justice Advisory Committee, Access to Justice – an action plan (1994) pp 279-80 para
11.6
Access to justice principles
accessibility,
appropriateness,
equity,
efficiency and
effectiveness.
“A Strategic Framework for access to Justice in the Federal Civil Justice System”
Attorney- General’s Department, Sept 2009 p 62
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Research: aims
Develop pilot mechanism by which to measure the quality of
mediation:
Develop criteria for measuring the justice quality of
outcomes;
Develop protocol for ensuring accountability.
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Research: questions
How do we measure the justice quality of mediation in the
context of access to justice?
How do we ensure accountability in mediation practice?
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Research: methodology
Qualitative approach.
Semi-structured interviews with practitioners, service
providers, policy makers, tribunal members and
magistrates mainly from Victoria (11 semi-structured
interviews conducted in 2011).
14 main questions asked covering issues relating to
disadvantage, procedural and substantive justice and
accountability.
Scenario and definitions.
Thematic analysis using NVIVO (2012).
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Definitions
Procedural justice – fairness of process.
Substantive justice – fairness of outcome.
Justice Quality –fairness of process and outcome.
Accountability – Compliance with and enforceability of
mediators’ ethical responsibilities in relation to the justice
quality of mediation.
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Some research questions
Has your organisation/practice evaluated the justice
quality of its mediation practice from the perspective of
clients?
Please read this scenario. What issues do you identify?
How would you respond?
In your opinion, should mediation deliver justice? If yes,
how? If no, why not?
Should mediation be concerned with procedural justice?
Should mediation be concerned with substantive justice?
How do you think the justice of mediation outcomes
should be measured?
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The Scenario
Frank arrived in Australia from a refugee camp 3 years ago and took up a factory
job. Low income. On Social Security. Speaks very little English and is unable
to read or write English.
Has a family with 2 kids.
Bought a car from Easy Car Yard on finance. Amount to be paid five times market
value; payment to be completed within 12 months according to contract
although according to Frank, he was informed by sales rep repayments would
be in three years.
Frank has an injury and is unable to work. Family barely surviving on social
security payments.
Frank defaulted on repayment.
Easy Car Yard insists Frank should pay up in 6 months as he has defaulted on
repayment plan in contract of sale and finance.
Easy Car Yard has issued proceedings at the magistrates’ court;
The matter is now before you for mediation. You have been told neither party
would have legal representation in the mediation. Frank will have an
interpreter in the mediation.
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The Scenario: Issues
Language;
Lack of familiarity with system;
Lack of income;
Lack of awareness of legal rights ;
Social Security earnings;
Unconscionable/unfair contract terms;
Individual vs. Company.
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Participants’ views on measuring justice quality
Varying views on justice and mediation:
Mediation is about process: a just process results in just
outcomes;
Justice quality should be about procedural justice;
Substantive justice difficult to measure;
Process should ensure delivery of substantive justice but
may not necessarily be the case;
Skills, experience and knowledge of mediator critical to
ensuring justice quality;
Mediation processes within the civil justice system must
deliver procedural and substantive justice.
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Participants’ views on accountability
Complaints processes through RMABs;
Evaluation of services and practice;
Accreditation under the NMAS.
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Conclusions: justice quality
Conflicted views on mediation and justice and measuring
justice quality;
Justice quality mostly viewed from a procedural justice
perspective;
Process ensures justice quality:
Intake;
Private sessions;
BUT heavy reliance on mediators’ skills, expertise and
knowledge.
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Conclusions: accountability
Accountability processes not uniform across organisations
and some mediators may be excluded if not members of a
RMAB or professional body;
Also lack of public access to mediation outcomes due to
confidentiality;
Parties may not be aware of complaints procedure;
Voluntary accreditation.
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Conclusions: criteria for measuring justice quality
Justice quality:
Societal values;
Legal values/principles;
Parties’ values.
Development of objective criteria based on legal, societal
and parties’ values and applied contextually
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Conclusions : criteria for measuring justice quality
OR measure against access to justice principles:
Accessibility;
Appropriateness;
Equity;
Efficiency;
Effectiveness.
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Some references
Akin Ojelabi, Lola, “Transforming Communities through Conflict Resolution Practices” The International Journal of
Diversity in Organisations, Communities and Nations, Vol 7 No 2 at 67.
Akin Ojelabi, Lola, “Values and the Resolution of Cross-Cultural Conflicts” (2010) 291) Global Change, Peace and Security
53.
Akin Ojelabi, Lola and Sourdin, Tania “Using a Values-Based Approach in Mediation” (2011) 22 Australasian Dispute
Resolution Journal 258.
Akin Ojelabi, Lola “Mediation and Justice: An Australian Perspective Using Rawls’ Categories of Procedural Justice” Civil
Justice Quarterly Vol 31 Issue 3 2012.
Federal Attorney General, Australia in “A Strategic Framework for Access to Justice in the Federal Civil Justice System”
(Foreword) Report by Access to Justice Taskforce, Attorney General’s Department, September 2009
Fiss, Owen, “Against Settlement” The Yale Law Journal, Vol 93 (1984) 1073 at 1075.
Genn, Hazel, Judging Civil Justice, The Hamylyn Lectures 2008, (Cambridge: Cambridge University Press at 117.
Hulls, Rob, Victorian Government Attorney-General, Attorney General’s Justice Statement 2, Introduction, October 2008;
Law Reform Committee, “Inquiry into Alternative Dispute Resolution and restorative Justice” Parliament of Victoria, May
2009.
Noone, Mary Anne, “The Disconnect between Transformative Mediation and Social Justice” (2008) 19 Australasian
Dispute Resolution Journal 114. See also
Noone, Mary Anne , “ADR, Public Interest and Access to Justice” (2011) 37(1) Monash University Law Review 57.
Waldman, Ellen (ed.) Mediation Ethics: Cases and Commentaries, 2011 Jossey-Bass, A Wiley Imprint.
Welsh, Nancy, “Disputants’ Decision Control in Court-Connected Mediation: A Hollow Promise without Procedural Justice”
(2002) 1 Journal of Dispute Resolution 179.
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