GUARDED PARTICIPATION

ALTERNATIVE DISPUTE RESOLUTION

AND PEOPLE WITH DISABILITIES

Jim Simpson

Report on a research project

carried out with funding from the

Law and Justice Foundation of NSW

2002

2

CONTENTS

INTRODUCTION 3

THE CONTEXT 3

METHODOLOGY 4

OVERVIEW OF RESPONSES TO DISCUSSION PAPER 5

ADVANTAGES OF ADR 5

Achieving outcomes that are implemented 5

Other advantages 6

DISADVANTAGES OF ADR 7

PROTECTING THE INTERESTS OF PERSONS WITH DISABILITIES IN ADR 8

Enabling the person to participate 8

Support/advocacy for the person 10

The role of the other parties 11

The role of the independent 12

Statutory safeguards 15

WHICH CASES? 16

Can the person's interests be protected? 16

The shadow of the future 17

Better than the “BATNA”? 18

Effect on group empowerment 18

But it’s a matter of principle! 19

How to decide whether ADR should be used 19

WHO PROVIDES ADR? 20

The discussion paper 20

Responses to discussion paper 21

CONCLUSION 24

RESPONDENTS TO DISCUSSION PAPER 25

REFERENCES 26

ACKNOWLEDGMENTS 28

3

INTRODUCTION

If a party to a dispute has a disability, this may disadvantage the party in mediation and other

alternative dispute resolution (ADR) processes with their emphasis on the parties working out

an agreed solution. This is particularly so if the party has a disability such as an intellectual

disability or brain injury that affects a person’s capacity to recognise his or her interests and

understand a bargaining process – in this paper the expression “cognitive disability” is used to

describe such disabilities and distinguish them from physical and sensory disabilities.

However, it would be simplistic to jump to the conclusion that ADR has little place in

disputes involving a person with disability. This report explores the role of ADR of disputes

involving a person with a disability.

THE CONTEXT

The main focus of this report is on mediation and conciliation.

Mediation is -

A process by which the participants, together with the assistance of a neutral mediator,

systematically isolate disputed issues in order to develop options, consider

alternatives, and reach a consensual settlement that will accommodate their needs.

(Folberg and Taylor 1984)

Conciliation differs from mediation in that the conciliator may advise the parties in relation to

the issues in dispute and on an appropriate resolution. Where conciliation occurs under

legislation, the conciliator may be obliged to protect rights spelt out in the legislation.

(NADRAC 1997)

In both mediation and conciliation, the neutral may advise on or decide the process to be

followed in seeking to reach agreement.

ADR is usually a voluntary process. However, in some contexts, it is compulsory – a court

may order parties to participate in ADR.

While the main focus of this report is on mediation and conciliation, there is a wide range of

ADR processes that can be used where appropriate. These include, for example:

Informally assisting parties to negotiate a solution to their dispute.

Expert appraisal, which involves someone chosen for their expert knowledge investigating

the dispute and providing advice to the parties about an appropriate outcome.

Mediation-arbitration, where someone first tries to mediate and, to the extent that this does

not resolve the dispute, the parties agree for that person to make a binding decision on

how the dispute should be resolved.

In this report, the label “independent” is used for the mediator, conciliator or other person

providing ADR.

ADR is carried out by bodies such as the Human Rights and Equal Opportunity Commission,

the Community Services Commission, Community Justice Centres, various courts and

tribunals, and by freelance mediators.

4

The report has a backdrop of three common kinds of disputes in which ADR may be an

underused option:

Disputes about decision-making for a person with a cognitive disability. This includes

disputes about issues such as where the person should live or about appropriate health

care. The disputes may be between other adults such as family and service providers, with

the person with the disability not being an active participant in the dispute. In other cases,

the person may be an active participant.

Complaints about the nature or quality of services being provided to a person with a

disability. The complainant may be the person or a family member or another informal

advocate on behalf of the person.

Disputes about appropriate policies and practices for a disability service system. Here, the

parties may be advocacy, peak and service provider organisations and government bodies

such as the NSW Department of Ageing, Disability and Home Care.

The discussion in the report is also relevant to other disputes involving people with

disabilities including disputes with neighbours and landlords, and discrimination complaints.

The latter are already often conciliated by the Anti-Discrimination Board and the Human

Rights and Equal Opportunity Commission.

Another type of disputes where ADR may become common is in relation to care issues about

children and young people. (Children and Young Persons (Care and Protection) Act 1998

(NSW), section 37) The NSW Department of Community Services says that it is important

that the needs of children, young people and parents with disabilities are adequately

considered in the use of this ADR. (DoCS response to discussion paper)

METHODOLOGY

This report is based on a discussion paper of the author that he then sent to fifty-four

organisations and individuals in New South Wales with experience and expertise in the

disability and ADR spheres. The author was particularly keen to obtain feedback from people

experienced in both spheres. Respondents were asked to complete a response form that

basically sought the respondents’ comments on each section of the paper and asked some

more specific questions (set out in Who Provides ADR? below) about the development of the

role of ADR in the disability field.

The report follows the same format as the discussion paper. It comprises the discussion paper

with acknowledged changes and/or discussion to reflect the responses to the discussion paper.

Also, references are now included; for ease of reading, references were not included in the

discussion paper. There is also a small number of additional references which have given rise

to further discussion.

5

OVERVIEW OF RESPONSES TO DISCUSSION PAPER

There were twenty six responses, from a broad range of individuals and organisations who

brought considerable experience and skills in the issues being examined. See Respondents to

Discussion Paper at the end of the report.

There was little disagreement with the substance of the discussion paper and its themes about

safeguarding the interests of people with disabilities in ADR and how to decide whether ADR

is appropriate in a particular case.

There was though valuable additional comment on many issues. There were also valuable

perspectives about how to make ADR more available to people with disabilities.

ADVANTAGES OF ADR

Alternative dispute resolution may have a number of attractive features for people with

disabilities.

Achieving outcomes that are implemented The effective resolution of disputes involving people with disabilities often requires a genuine

commitment by the disputants to implement the outcome. An imposed outcome may not

work if key players do not want it to work. For example, if it is agreed that qualitative changes

should be made to a personal care service, the change is much more likely to be successfully

implemented if the service provider has agreed to or at least accepts the need for the change.

Similarly, if there is a dispute in a family about where a person with a disability should live,

the outcome will be much more likely to prove workable if the disputants agree with the

outcome or at least feel that they can accept it. They will then be more ready to provide the

person with the encouragement and support the person may need to adjust to the new living

arrangement, and less likely to deliberately or unconsciously undermine the new arrangement.

ADR has the capacity to produce this kind of cooperative approach. Effective resolution of

disputes at times of marital breakdown is an example of another sphere where imposed

outcomes often do not work. Research in Australia and internationally now confirms that

mediation

is seen positively by the participants in family dispute resolution,

achieves high settlement rates,

achieves agreements with which participants generally comply, and

is comparatively cheap compared with litigation.

(Kelly 1996; Love, Fisher and Maloney 1996; Maloney, Fisher, Love and Ferguson 1996)

This major advantage of ADR flows from its emphasis on the parties working together to

come up with an agreed and perhaps imaginative solution to their dispute. The parties are

likely to end up with a feeling of ownership of the outcome.

If the parties are able to resolve a dispute through ADR, they may also find it easier to work

cooperatively in the future. (Astor and Chinkin 1992, 246-254; Parsons and Cox 1989, 126)

This is important if the parties need to go on interacting. A person with a disability, family

6

and service providers often do need to continue interacting if the person is to receive the

support he or she needs.

Of course, none of this will necessarily be so. It requires an honest commitment to the

process and a capacity to hear the other point of view. (Brain Injury Association (BIA)

response)

Other advantages The informality, flexible process and limited legalism that tends to go with ADR may be

particularly attractive to a person with a disability who may find alienating and intimidating

the more formal, adversarial and legalistic atmosphere of other approaches. This is especially

so if the alternative is a court. (Working Party on Appeal and Complaints Mechanisms for

Community Services in NSW 1992, Appendix 3; Simpson 1996).

ADR can be used at any appropriate stage in a dispute, and may not be confined to business

hours. It may be cheaper, especially if the alternative is litigation. (Astor response)

A person does not normally need legal representation for ADR.

ADR can deal with all of the issues in dispute between parties and can basically have any

outcome they agree to. Courts, tribunals and statutory complaints bodies can only deal with

the issues that the law gives them power over, and they are limited in the kinds of decisions

they can make. This often means that only part of a grievance is addressed or even that a

person has to seek a remedy that they do not really want, just to get their grievance heard. For

example, a person who wants deficiencies in a service fixed may need to appeal to the

Administrative Decisions Tribunal against the continued funding of the service (Disability

Services Act 1983 (NSW) section 20).

ADR emphasises the parties to a dispute working cooperatively to solve a problem. It is much

more participatory than other processes. (Orr and West responses)

Successful use of ADR may also be a highly empowering experience for a person with a

disability or a family member advocating for the person. (Innes has seen many examples of

this. (Innes response)) ADR can be a great leveller if a person who is used to being in

authority has to sit quietly and listen while a person with a disability gives his or her point of

view. (Thornton1989, 752)

The privacy and confidentiality in ADR can both encourage the pursuit of a dispute and

encourage the other party to settle the dispute. (Astor & Chinkin 1992, 274; Thornton 1989,

740).

The non-adversarial process of ADR may also be valuable in reducing the extra bitterness

between parties that can be engendered during the period of a dispute being resolved. This

will be particularly valuable where the people in dispute need to have day to day contact in

supporting the person with the disability.

People from non-English speaking backgrounds often favour ADR because they do not want

to appear ungrateful to Australia and they may fear recrimination from more adversarial

approaches. This is particularly the case for refugees with experience of torture.

(Multicultural Disability Advocacy Association (MDAA) response)

7

However, the advantages in this section may be less significant if the alternative to ADR is

not a court but a comparatively informal process such as the Guardianship Tribunal. The

Tribunal’s hearings are comparatively informal and non-adversarial. (However, this can not

be guaranteed. In some cases, a “disagreement” escalates to “war” during the Guardianship

Tribunal process. (Whaite response)) The person with the disability is actively included in

the hearings. An absence of legal representation assists the informality. (Astor 1994)

Guardianship law and practice also include some safeguards on personal privacy.

(Guardianship Act 1987 (NSW), sections 57 and 101)

On the other hand, a factor in favour of ADR of guardianship cases is that it has potential to

avoid the decision-making rights of the person being formally taken away through a

guardianship process (American Bar Association 1990, 18-19). Degrading formal labels such

as "incapable of managing his person" may be avoided. (Guardianship Act 1987, definition of

“person in need of a guardian” in section 3)

DISADVANTAGES OF ADR

There may also be substantial dangers for people with disabilities in ADR. Central to these is

the impact of the disability on the person's participation in the process.

There may be a considerable power imbalance between a person with a disability and other

parties to a dispute. The same may apply where a family member or advocate pursues a

grievance with a service (Shemberg 1997).

In assessing power imbalances, one needs to look at the whole “identity” of each party,

including issues of ethnicity, culture, gender and willingness to use power (NADRAC 1997,

18,19,29). However, people with disabilities will certainly tend to have less power than

service providers because of factors such as dependence on the service, vulnerability to

retribution and the “expert/information power” that a service provider may have.

In ADR, one bargains for what one feels entitled; the life experience of people with

disabilities may leave them with low expectations about their entitlements (Astor response).

Also, others may not accord respect to the views of people with disabilities, especially

cognitive disabilities (Illawarra Disability Trust (IDT) response). These factors make the

person with a disability and/or their family vulnerable to agreeing to a poor outcome and

being hurt by the process of dispute resolution. (Astor and Chinkin 1992, 90-91, 102-103, 106

and 273)

For many people with cognitive disabilities, this power imbalance may extend to the person

being clearly unable to identify his or her interests, understand the ADR process and protect

his or interests in the process.

This vulnerability may be exacerbated by the confidentiality and privacy normal in ADR.

There will be a lack of public scrutiny on the fairness of the outcome and the appropriateness

of the independent’s use of his or her power. (Astor and Chinkin 1992, 17-18 and 105)

The use of ADR could also impede group empowerment or systemic change for people with

disabilities. This can arise from factors including:

Precedents may not be established

8

Media attention on a conflict may be sacrificed.

Successes might not be publicised.

Community standards about appropriate treatment of people with disabilities might not be

reinforced. (Alternatively, ADR may reinforce existing community standards that are

devaluing of people with disabilities. (MDAA response))

Dealing privately with one allegation of discrimination, for example, may well not address

fundamental systemic problems.

(Astor and Chinkin 1992, 55-57 and 274; Thornton1989, 741 and 760)

However, these problems arise similarly with the negotiated settlements by which most court

cases are resolved.

PROTECTING THE INTERESTS OF PERSONS WITH DISABILITIES

IN ADR

There are a number of approaches by which the ADR process might be adjusted to avoid a

person with a disability being disadvantaged. A “package” of these approaches may be

needed rather than just relying on one of them.

Enabling the person to participate All practicable steps should usually be taken to assist a person with a disability to protect his

or her own interests in ADR. In recent years, good practice and the law have come to

recognise the right of people with disabilities to participate in decisions that affect their lives.

For example, the Disability Services Act 1993 (NSW) requires services and programs of

services “to ensure that persons with disabilities participate in the decisions that affect their

lives”. It follows that ADR processes should seek to meaningfully involve the person

including where the dispute arises between other parties, for example family and service

provider, but is about decisions or services for the person.

To maximise the involvement of a person with a disability, it will be important to make the

ADR process sensitive to the person's particular needs. If the person has a cognitive

disability, appropriate approaches may include the following:

Make the meeting room informal and free of distractions. Show the person the room in

advance of the meeting.

Provide the person with advance explanations about the process in plain English, perhaps

enhanced by pictorial or taped formats.

Spend extra time at the start of the meeting allowing the person to get comfortable with

the environment and atmosphere.

Ensure that all communication in the meeting is unhurried and in plain English. Avoid

leading questions. Avoid abstractions where practicable. Deal with one issue at a time.

If the person has problems with memory, endeavour to deal with issues when they occur to

the person. (Community Services Commission (CSC) focus group)

As the meeting unfolds, check the person's understanding of the process and what is being

said.

Have regular breaks.

(Spice Consulting 1997)

9

The needs of the particular individual need to be considered. The above dot points are only a

guide to some common needs.

Timing of the ADR meeting also needs to take account of individual needs. Some people

with psychiatric disabilities may be able to fully participate when well but not when unwell.

(Mental Health Coordinating Council (MHCC) response)

Some people with brain injuries will have difficulty understanding why one issue is being

dealt with when they feel there is “a greater moral or conspiratorial issue underlying

everything”. The latter issue needs to be addressed before the process can proceed further.

(BIA response)

For people with physical disabilities, access to the premises is obviously vital. For people

with sensory disabilities, communication aids such as sign interpreters and putting written

material into braille are needed.

The independent needs knowledge of disability and communication with persons with

disabilities (West response; Shannon 1996). In some cases, the independent and other

participants may need specific education about how to adequately communicate with the

particular person with a disability. (Orr response)

In considering how to maximise a person’s involvement, it is important to focus on the whole

person, not just the disability. Issues such as personality and cultural background may be

important.

If a language interpreter is used, the interpreter may need some preparation to ensure that he

or she interacts appropriately with the person with the disability, for example through use of

respectful terminology about the person’s disability. (MDAA response)

The venue for the ADR needs particular consideration. It should be somewhere the person

feels confident to express his views. In some cases, it may be appropriate to have the ADR at

the site of the dispute so as to enhance the person’s understanding of the process. (CSC

response)

These ways of enhancing the participation of a person with a disability in ADR are largely just

extensions of approaches taken in ADR to promote the participation of parties generally.

Providers of ADR services would be complying with principles underlying anti-

discrimination laws such as the Disability Discrimination Act 1992 (Cwlth) by making such

adjustments to their processes. However, it is sobering to note the experience of Innes:

I have seen a lot of token participation. The suggestions in the paper are excellent, but

in a sometimes time-limited process in some generalist tribunals they are sometimes

swept aside or minimised. (Innes response)

In some cases, a person with a cognitive disability might appropriately attend part but not all

of the ADR sessions. For example, the person’s real participation might be maximised if he

or she is not expected to attend protracted discussion of technical issues or discussion of

hostilities that exist between the other parties.

In some situations, the protection of the interests of the person with the disability might call

for there to be no meeting of the parties, with the independent rather communicating with the

10

parties in turn to clarify the facts and conduct settlement negotiations. This approach has been

used by anti-discrimination conciliators (Thornton 1989, 747-748) and might be called for if,

for example, the person with a disability or family advocate would otherwise be too

intimidated to participate. However, it would also impede the joint problem solving that is a

valuable feature of ADR.

Support/advocacy for the person It may also be important to provide the person (or persons) with a disability with an advocate

or support person. This role can range from assisting the person to express his or her own

views to representation of the advocate’s perception of the interests of the person. A variety of

different models of advocacy and support can be found.

One option is involvement of a lawyer. However, the active involvement of lawyers in ADR

can make the process more formal and adversarial (Thornton 1989, 756) and so limit the

scope for imaginative exploration of solutions to the dispute. Sometimes, involvement of a

lawyer may be appropriate, especially if a realistic alternative to ADR is pursuing a case

through the courts. Even then, it may be sufficient to have a lawyer available for advice. If

the person with a disability has a lawyer, the other party will probably bring one as well.

Astor (1994) favours a "community advocate" model to protect the interests of a person with a

cognitive disability in mediation of a guardianship dispute. She says:

An advocate would ideally be a person who would have the trust of the person they

represent, would have spent time getting to know them, would have knowledge of

disability issues arising from experience, and have the ability to test the views of others

in the mediation in light of their knowledge of the person with the disability.

Contemporary thinking about advocacy for people with disabilities also emphasises factors

including the need for the advocate to represent the major needs and welfare of the person

with the disability, to avoid significant conflict of interest and to be vigorous in carrying out

his or her role. (Cocks and Duffy 1993; Ageing and Disability Department 1996)

There may also be some dispute of Astor’s emphasis on “knowledge of disability issues

arising from experience”. The issue may be more one of being able to closely identify with

the interests of the person with the disability. The knowledge needed of disability issues may

vary with the subject matter of the dispute.

Advocacy can be provided through an advocacy group funded under the Commonwealth or

NSW Disability Services Act. The limited resources of such groups are always very

stretched. There is a particular shortage of advocacy appropriate to some groups. (MDAA

response)

If the person has a guardian or financial manager appointed by the Guardianship Tribunal, it

may logically be that person’s role to represent the person’s interests in ADR.

Often, a family member or friend may act as an advocate or support person, sometimes with

the support of an advocacy group. However, caution is needed about any conflict of interest

of a proposed advocate/ support person. These roles should not be taken by a person with a

coercive relationship with the person, as for example a mental health worker may have (CSC

focus group).

11

The use of such advocacy and support models in ADR raises various questions. If the role is

confined to pursuing the wishes of a person with a cognitive disability, will this adequately

protect the person’s interests? If an advocate represents the person’s interests, the advocate’s

value judgments about those interests may take centre stage. Comfort can be derived from

there being considerable learning about the nature and purposes of advocacy for persons with

disabilities, although this learning includes much debate (Cocks and Duffy 1993; Ageing and

Disability Department 1996).

Part of the advocate’s role may be to help the person with a disability to understand how his

or her best interests and wishes can coincide. This may include showing the person options

from outside his or her usual experience. (Family Advocacy response)

In some situations, the role of a representative may be defined by an independent body. This

happens if the person is formally appointed as a representative of a person with a cognitive

disability by a tribunal in whose proceedings ADR is occurring. Similarly, a guardianship

order specifies the functions of a guardian.

Various respondents to the discussion paper stressed the importance of advocacy/support for

the person with the disability. For example, Morley saw an advocate as having vital roles in

gathering evidence in support of the person’s position, helping the person to be aware of his or

her needs and entitlements and otherwise assisting the person to show the merits of his or her

case.

Advocacy and support have potential to protect the interests of people with disabilities in

ADR. However, they need to be used thoughtfully, with consideration to the appropriate

qualities and role of the advocate/support person.

The role of the other parties

Another approach is to rely, at least in part, on the other parties to adequately protect the

interests of the person with a disability.

For example, there might be a dispute between a parent and a service about the degree of

support and guidance that a person with an intellectual disability needs. Both these parties

may see themselves as acting in the person’s interests.

Similarly, there might be a dispute between an advocacy group and government about whether

a particular service model is appropriate under the Disability Service Act NSW. The dispute

might be focused on a particular service so that it too is a party to any ADR.

In these kinds of situations, between the parties, the interests of the people with cognitive

disabilities may be adequately protected. However, this cannot be assumed -

Interpreting “best interests” is a very value laden task. (Astor and Chinkin 1992, 230-231)

Issues about quality of service provision are covered by principles and applications of

principles in the Disability Services Act (NSW). However, these are expressed in general

terms and there is potential for conflict between different principles and applications in

addressing a particular situation. There is considerable scope for different people to interpret

the principles and applications in different ways; again, a person’s value base will be central

to how he or she sees things.

12

Another limitation on relying on other parties to protect a person's interests is that the other

parties will have their own interests which will not always coincide with those of the person

with a disability. For example, a government department has an interest in operating within

the fiscal frugality imposed by treasury and in providing services to as many people as

possible within its budget. A common interest of parents is to feel secure that their son or

daughter is closely supervised. This may conflict with an interest of the son or daughter to

develop greater independence with some of the risk-taking inherent in living a more

independent life.

There may also be major power imbalances between the other parties.

The role of the independent

Differing views about the neutrality of the independent To what degree can or should the independent ensure that the interests of a person with a

disability are safeguarded in ADR?

Codes of conduct for mediators are often unclear on this issue. On the one hand, they

emphasise that the essence of mediation is self determination by the parties. On the other

hand, they often speak of the mediator having a responsibility to prevent agreements that are

unfair. (Cooks and Hale 1994)

Should the independent advise a disadvantaged party to obtain legal advice? Should the

independent insist on this? Should the independent warn the party that they are making a

“bad deal”? Should the independent simply refuse to draft the unfair agreement?

Some argue that self-determination by the parties should be paramount. An intrusive role by

the independent may undermine the parties in generating creative solutions. It is an imposition

of the independent’s values and undermines his or her neutrality. It prejudices the parties’

ownership of and commitment to the outcome of the ADR. (Bush 1982)

On the other hand, the approach to mediation taken in the Family Court was based on the

view that mediators are faced with a “trilemma” of potentially conflicting obligations - to

parties’ autonomy, to unrepresented third parties and to society at large. The last includes

“society’s requirement for fair and equitable arrangements when families separate”. (Gibson

1994)

Thus, principles of mediation in the Family Court on the one hand emphasise self-

determination. On the other hand other principles state that:

Mediators are to ensure that the process is fair and equitable.

Mediators are to ensure that participants have adequate and reliable bases for informed

decision-making. (However, mediators are not to provide expert opinion on the issues

being mediated.)

Mediators are to engage the participants in evaluating the impact of any agreement on

people not present in the mediation, in particular children.

Participants are to be encouraged to obtain independent legal advice and any other

relevant advice or information.

All relevant information and documents must be provided by each participant to the other

participants.

13

Mediators may suspend or terminate the mediation process when one participant is

disadvantaged by the process or where others external to the process, in particular the

children, would be seriously disadvantaged.

The Family Court principles also include a strong emphasis on pre mediation screening to see

whether a dispute is appropriate for mediation.

The National Dispute Resolution Advisory Council (NADRAC) has suggested that ADR

service providers may seek “substantive equality” - that is, less powerful parties should be

provided with what they need to enable them to participate equally in the ADR process and to

achieve a fair and just outcome. (NADRAC 1997, 30-32)

Some of the strategies that an independent might use to address power imbalances are as

follows. The appropriateness of some of these strategies depends on one’s view of the extent

of the role the independent should have in addressing power imbalances.

Intake procedures These can be used for assessing the suitability of parties for ADR and preparing the parties for

ADR. Parties are provided with information about ADR. The independent may assess

whether parties are genuinely willing and able to participate. (Gibson 1994)

The independent could assess with the person with a disability, and others if appropriate, what

package of safeguards is needed if the person is not to be disadvantaged in ADR.

The rationale for safeguards would be discussed with other parties and their willingness to

proceed confirmed.

During the mediation Power issues need to be reassessed as the dispute resolution process unfolds. The package of

safeguards may need to be varied.

Methods used by mediators to empower all parties to a mediation may be of assistance to a

person with a disability. This includes modelling respectful behaviour, encouraging openness

and sharing of knowledge, and controlling intimidating behaviour. Private meetings between

the mediator and each party may be particularly important to assist a person to articulate their

interests, goals and proposals. (Astor and Chinkin 1992, 107-108; Kelly 1995)

It may be appropriate for the independent to insist on full sharing of information. Perhaps, it

should also be open to the independent to provide education about the issues under

consideration. (Kelly 1995 but cf Bush 1982, 36)

Where the established relationship between the parties is one of domination and deference, the

independent might focus on drawing out the deferent party’s interests and proposals and on

ensuring the evaluation of the ideas of the more dominant party. The independent can

continuously pull the deferent party into the process and make referrals as necessary for that

party to get expert advice. The independent can call on the dominant party to show how their

proposals would work for other parties. (Kelly 1995, 90-91)

Where a party, or an absent person with a disability, is being disadvantaged by the process, it

may be that the independent should terminate the process. (Gibson 1994, 5) This may

14

include where a party is agreeing to an unfair outcome – this may flow from the NADRAC

“substantive equality” principle but would be hotly contested by those emphasising party self-

determination.

Conclusion A significant issue is whether the other parties to ADR will accept compromises on pure

neutrality of the independent. A party may perceive the independent as biased. On the other

hand, some parties may welcome an independent’s power balancing activities since they can

support a productive exchange and help achieve a fair settlement. Another issue is whether

power balancing by the independent, even though acceptable to the other parties, may stultify

the development of imaginative options by the parties, and reduce the parties’ commitment to

the outcome of the process.

However, research on Family Court mediation indicates that parties have a positive view of

the process and the role of the mediators. (Maloney, Fisher, Love and Ferguson 1996)

If the independent is to have a significant role in power balancing, this needs to be squarely

addressed with the parties prior to the ADR commencing.

Responses to the discussion paper supported a strong role for the independent in addressing

power imbalances (including Astor, West, Family Advocacy, Anti-Discrimination Board

(ADB), DoCS, MDAA). There was substantial support for the Family Court approach spelt

out above (CSC focus group, West, Home Care, Family Advocacy and Stelc responses).

The discussion paper used the expression “ the neutral” rather than “the independent” but two

respondents persuasively argued that neutrality did not make sense as a concept in the context

of the paper (Astor and Whaite responses). The word independent is now used in the sense of

independent of the dispute.

If independents are to have a substantial role in safeguarding the interests of people with

disabilities, the issues of their values and knowledge of disability issues are important. What

one sees as a fair outcome may very much depend on one’s values and one’s knowledge of the

issues in dispute. The independent may need a good knowledge of the person with a

disability, of disability issues and of values such as those embodied in the Guardianship Act

or the Disability Services Act. (Talbert and Carp 1995 and strongly supported in various

responses to the discussion paper, including People with Disabilities NSW (PWD), MDAA,

Innes, IDT and CSC focus group) This value base should be disclosed to the parties prior to

the mediation.

Independents also need substantial training in cultural issues (MDAA response).

For people with physical or sensory disabilities, great caution is needed to avoid the

independent taking over the person’s right to self-determination.

Having two mediators may add to the safety of the process. Co-mediation is the usual

practice of the Community Justice Centres, for example.

The PWD response raised the issues of a clear code of ethics for ADR practitioners and

training and accreditation of practitioners. Whaite emphasised that there should be a clear

obligation on independents to take the kind of approaches raised in the discussion paper to

15

protect the interests of people with disabilities. These responses might be linked to the

discussion of a national framework for ADR standards (NADRAC 2001). Such discussion

needs to accommodate the needs of people with disabilities as outlined in this report. The

specialist body proposed in Who Provides ADR? below might take a lead role in pursuing

these issues.

Statutory safeguards

Where alternative dispute resolution occurs in the context of legislation, the legislation may

include safeguards on the rights and interests of relevant people with disabilities.

Where legislation sets up a system of conciliation, the conciliator may have a duty to uphold

stated principles and this may encourage some departures from pure mediator neutrality. An

example of this is the conciliation conducted by the Anti-Discrimination Board NSW. ADB

conciliators tend to take a more directory role towards a solution than mediators generally take

and to be active in protecting the rights of a weaker party. (Astor and Chinkin 1992, chapter

12)

Similarly, the Guardianship Act 1987 (NSW) requires the Guardianship Tribunal to treat as

paramount the interests of the person with a disability whose case is being considered. Thus,

the Tribunal would not be able to accept a decision that had been agreed between the parties

unless the Tribunal was satisfied that this was in the interests of the person. This would

include where the Tribunal has itself conducted a conciliation hearing (discussed in Astor

1994, 12).

Under the Community Services (Complaints, Review and Monitoring) Act 1993 (NSW), the

Community Services Commission has the power to refer a complaint to conciliator. This

requires the consent of the parties to the complaint. The conciliation process is confidential,

except that a conciliator may disclose to the Commission a matter involving a serious issue of

public safety or a serious offence. The conciliator may also terminate the ADR process if

satisfied that a significant issue of public safety or public interest has emerged. In carrying

out his or her role, the conciliator would be guided by the objects and principles in section 3

of the Act. At the end of alternative dispute resolution, the conciliator may recommend that

the Commission investigate the complaint. (Sections 3, 22, 26, 32, 33, 35) (These safeguards

will be weakened with the pending absorption of the Commission as the Community Services

Division of the NSW Ombudsman. The general provisions about conciliation in the

Ombudsman Act 1974 will apply instead of the provisions above. Community Services

Legislation Amendment Act 2002)

If there is a dispute about service provision that is occurring under the Disability Services Act

1993 (NSW), then a resolution needs to be in line with the Act. For example, a service that is

funded as a fully conforming service could not agree to act in a way that did not conform. If

there was any doubt about whether an agreement between the parties was in line with the

service’s obligations under the Act, the agreement might be made subject to the approval of

the Department of Ageing, Disability and Home Care. Where a dispute involves major issues

about a service’s conformity to the Disability Services Act, it may be sensible for the

Department to be a party in the ADR process. If the matter was the subject of an appeal to the

Administrative Decisions Tribunal, then the Tribunal would need to vet the agreement before

dismissing the appeal.

However, the effectiveness of legislative safeguards on ADR will depend on much more than

the wording of the legislation. If all of the parties agree on an outcome, there may be no-one

16

watching over the process to ensure a tribunal or department gives the outcome due scrutiny

before endorsing it. Much will depend on the training, knowledge and resoluteness of the

decision-maker.

There was general acceptance of the above discussion in the responses to the discussion paper.

Some respondents also stressed the problem of lack of clarity in statutory benchmarks against

which agreements are measured, for example the principles and applications in the Disability

Services Act. (CSC focus group, Innes and Hennessy responses)

There was some interest in establishing overarching statutory safeguards for all ADR

involving people with cognitive disabilities (BIA and Orr responses). Orr emphasised that

some people will lack adequate understanding to enter into a legally valid agreement but noted

the inconsistency of this legal principle with the contemporary emphasis on assisting people

with disabilities to make decisions that affect their lives. He raises the idea of legislation to

make agreements in these circumstances subject to ratification by a tribunal such as the

Guardianship Tribunal. Astor also liked the idea of legislative safeguards but doubted the

practicality of legislation to overarch all ADR involving people with disabilities. She

therefore felt that the independent has a key role in safeguarding the process. (Astor

response)

WHICH CASES?

Alternative dispute resolution has potential to address many disputes involving a person with

a disability. However, if it is used without care, it could often be an instrument of injustice.

A range of factors needs consideration in deciding which situations are suitable for ADR.

Parties need to be willing to seek a negotiated settlement and to hear the point of view of the

other parties. The capacity of all parties to protect their interests in the process needs to be

considered.

It is generally accepted that ADR is inappropriate to deal with allegations of abuse – abuse is

non-negotiable (Lisi and Burns 1992, 645; Park, Wood and Gottlich 1992, 640; American Bar

Association 1990, 15).

Particular care is needed in considering whether ADR is appropriate for the person or people

with disabilities involved in a particular dispute. It can be argued that ADR has little place in

disputes involving a person with a major cognitive disability because of the difficulty the

person will have in understanding and participating in the process. However, this argument

would deny such disputes an important option for their resolution. It is also inconsistent with

the way in which issues are usually decided for such a person – through an informal consensus

between person, family/advocate and service providers. Also, as outlined above, there are

various ways in which such a person’s interests can be safeguarded in ADR.

In deciding whether ADR is appropriate for a dispute involving a person with a disability, the

following issues need particular consideration:

Can the person's interests be protected? The nature and effect of the disability itself needs to be considered. To what degree will it

impede the person in participating in the ADR process and safeguarding his or her interests?

To what extent can this problem be overcome by the strategies set out in this report?

17

A package of strategies may be needed, tailored to the individual situation. In devising this

package, relevant factors include:

How serious are the implications of the dispute for the person with the disability? The

more serious the implications, the greater the care that is needed in devising safeguards.

What is the cultural background of the person? (MDAA response)

To what degree will it be feasible for the person to directly participate in the ADR? To

what degree does the person want to directly participate?

Will the other parties be respectful of the person in the ADR process? Are they willing to

accept major adjustments to the process so as to allow maximum direct participation by

the person?

Does the person have an advocate or support person?

Are the other parties willing to accept the independent overtly protecting the interests of

the person with the disability? Does the independent have the capacity to do this

effectively?

Where another party or parties see themselves as protecting the interests of the person, do

they have the confidence and skills to do this effectively? Do they have a conflict of

interest? Is the nature of the dispute such that they will be faced with major value

judgments in determining the interests of the person? What are their value bases?

How rigorously are any statutory safeguards applied?

At the same time, it is important to avoid the process of safeguarding the interests of the

person becoming so complex that the informality and flexibility of the ADR process are lost.

A desire to provide iron-clad safeguards needs to be tempered by the reality that most

decision-making around a person with a cognitive disability will occur through informal

interaction of the person, family and service providers. Also, undue paternalism needs to be

avoided.

There was widespread support for the above discussion in the responses. However, one

dissenting voice was the Mental Health Coordinating Council which felt the discussion paper

was not nearly stringent enough in ensuring that the rights of the person with the disability

were protected. Those rights were seen as paramount, however complex the task of ensuring

that might be. The Council said that there should be more consideration of the needs of

people with mental illnesses in the context of ADR and how to meet those needs. (MHCC

response)

The Brain Injury Association also had a sceptical view. The Association saw ADR as

desirable in some circumstances but felt that “very explicit detailed guidelines must be put in

place to guide the process”. Appropriate support and advocacy for the person was vital.

There was a fundamental problem with availability of appropriate support people/ advocates

for people with brain injuries.

The shadow of the future

How great is the “shadow of the future” of the dispute? That is, to what extent are the parties

required to interact in the future? In particular, is the cooperation of the parties required if the

outcome of a dispute is to be implemented? If the shadow of the future is large, this will be a

strong argument for ADR. (Parsons and Cox 1989, 125)

18

Better than the “BATNA”? How does alternative dispute resolution compare with other options for resolving the dispute,

in particular the BATNA (best alternative to a negotiated agreement)?

If the alternative is an expensive court hearing in which the evidence of the person with a

cognitive disability is crucial, this may be a very unattractive alternative. On the other hand, if

the alternative is a comparatively informal and non adversarial process such as the

Guardianship Tribunal, the argument for ADR will be weaker.

The BATNA may lie in seeking enforcement of the obligations of a service provider under

legislation such as a Disability Services Act. One then needs to assess what mechanisms are

practically available to parties to have the Act enforced. It can not be assumed that the

relevant government department will enforce the law. Factors such as political pressure or the

limited resources of the department may impede enforcement.

The parties seeking enforcement may be in a somewhat stronger position if they can take a

complaint to an independent watchdog like the Community Services Commission, or appeal

to the Administrative Decisions Tribunal.

In some cases, there may be no realistic alternative to ADR. (PWD and West responses)

In deciding whether to pursue ADR, it may be relevant to look at the values of the person with

a disability (Park, Wood and Gottlich 1992, 638). For example, is it more important to the

person to have his or her rights fully vindicated or to find a peaceable solution? However, a

desire for a peaceable solution could derive from a person feeling intimidated by another party

and being socialised into low expectations of his or her interests being met.

It is often argued that ADR is of doubtful appropriateness where there is a major imbalance of

power. However, as Astor and Chinkin (1992, 108-109) point out,

In assessing the limitations of mediation in dealing with power imbalances, we

should not be too sanguine about the ability of other methods of dispute resolution

to deal with them.

Effect on group empowerment As discussed earlier, ADR can impede group empowerment and systemic change. The private

resolution of one dispute may mean that legal precedents are not set, publicity is lost and

systemic problems are not addressed. However, this will not necessarily be the case. Part of

the outcome of ADR may be the consensual addressing of fundamental problems. Also, a

victory in establishing a precedent may be hollow if the losing party goes away and finds a

way to get around the precedent. For example, governments often legislate to override

precedents they do not like.

The assessment of the BATNA can include weighing up any negative effects of ADR on

group empowerment.

Also, the privacy and confidentiality of ADR need not necessarily be absolute. If a party to

ADR is a peak or advocacy group, it may be an overt part of the ADR arrangement that any

resolution needs to be reported to the group’s members. Also, there may be scope for an ADR

body to provide non-identifying information about the nature of disputes it handles.

19

But it’s a matter of principle! It is often argued that disputes involving moral judgments about right and wrong are rarely

mediable (O’Leary 1995, 28-29; Amy 1987). This does not mean that there should be a

blanket policy against ADR of such disputes. ADR may resolve immediate issues with parties

agreeing to differ on longer term ones. ADR may be useful to reduce the “conflict overlay” of

a moral dispute – that is, ADR may deal with the misunderstandings and unnecessary

technical differences that overlay the core conflict (Burgess and Burgess 1995).

Also, some parties to moral disputes may see ADR as appropriate if they coolly assess their

BATNA as weaker than their prospects in ADR.

How to decide whether ADR should be used It could be the role of the independent to consider whether ADR is appropriate, taking into

account the above factors. This includes consideration of what safeguards are appropriate to

protect the interests of the person with the disability. The person should have a central role in

these discussions unless this is prevented by the effect of a cognitive disability. The

independent should check the parties’ willingness to proceed with ADR with appropriate

safeguards.

The responses to the discussion paper contained little dissent from the independent having this

role.

Two respondents (Pollard and Orr) also emphasised the importance of considering which

form of ADR (mediation, conciliation, facilitation, expert appraisal etc) is most appropriate

in a particular case. This is something the independent could do with the participants.

Note for example that Shannon (1996) argues the advantages of “moderated settlement

conferences” particularly for disputes involving people with cognitive disabilities. Here, a

panel of experts, including expertise in the effects of the relevant disability, hear both points

of view and then provides an opinion about a fair outcome. Shannon argues that mediation is

often inappropriate because of common myths, stigma and ignorance about people with

cognitive disabilities. It can be difficult to obtain a mediator with adequate disability

awareness.

Another interesting variant is the capacity of the Human Rights and Equal Opportunity

Commission to conduct a public inquiry into a complaint before attempting to conciliate it.

(Disability Discrimination Act section 7(1) and HREOC 1999) An inquiry might gather

relevant evidence so that parties went into conciliation with a better idea of the factual

situation and of options for resolution.

Neither ADR nor safeguards should be imposed on a person if the person does not want them.

Two responses to the discussion paper questioned whether this issue needed to be taken

further by focusing on the issues of consent to participate in ADR or to give instructions to an

advocate (ADB response and CSC focus group). It can be argued that, to participate in ADR,

a person needs to understand what he or she want and why and what the other parties want

and why, and then to be able to develop options and agreements (NADRAC 1997, para 6.57).

Also, if a person with a disability was to be a party to a legally enforceable contract, then he or

she would need to understand the general nature and effect of the transaction (Gibbons v

Wright (1954) 91 CLR 423 at 437). In the absence of this understanding, the person may need

20

a financial manager appointed under the Protected Estates Act 1983 (NSW) to contract for

him or her.

However, ADR very often does not involve any legal contract.

More importantly, this report advocates moving away from a focus on “capacity” towards a

more flexible focus on protection of a person’s interests and maximising the person’s

participation in the process. This approach is consistent with principles of human rights and

best practice as reflected in legislation such as the Guardianship Act 1987 (NSW) (section

4(a), (b)(d) and (f)) and the Disability Services Act 1993 (NSW) (Schedule 1, Principles

1(e)(f) and (g) and Applications of principles 2(f)(k) and (l)).

WHO PROVIDES ADR?

The discussion paper Under the above heading, the discussion paper said:

Various statutory bodies provide some ADR of disputes involving people with

disabilities. This ADR is focused on the disputes over which the body has

jurisdiction. These bodies include the Anti-Discrimination Board, Human Rights and

Equal Opportunity Commission, Guardianship Tribunal, Community Services

Commission, Administrative Decisions Tribunal, Residential Tenancies Tribunal and

so on.

Community Justice Centres can provide free mediation of disputes within local

communities. CJCs are based in various centres in metropolitan Sydney and around

the state and provide a flexible range of ADR services. CJC mediators are

experienced in addressing imbalances of power. They deal with a significant number

of disputes involving people with disabilities.

There are also many freelance mediators, some of whom have particular experience in

disability. Such mediators naturally charge for their work which limits their

accessibility.

A question that arises from this paper is whether there should be a funded source of

ADR with characteristics along the following lines:

A specialist disability focus.

A goal of making ADR available where it is appropriate for disputes involving

people with disabilities.

A determined values base, perhaps based on principles of human rights and social

justice.

A commitment to ensuring that ADR includes appropriate safeguards of the

interests of people with disabilities.

A statewide focus.

Provider of a flexible range of ADR services including direct ADR and promoting

better resolution of disputes by other organisations. This could include

encouraging such organisations to have appropriate protocols and training.

Independence from bodies that may be parties to disputes that need ADR.

21

This role might be given to a new and independent organisation funded by the state

government. Alternatively, it might be an appropriate development of the role of one

of the bodies mentioned above that already has a role in ADR.

There may be stronger arguments for having such a specialist source of ADR for

people with cognitive disabilities than for other disabilities. A major cognitive

disability is a fundamental challenge to the conventional thinking that ADR is based

on parties being able to identify their interests and fully participate in the ADR

process. In the process, the judgments of others about the person’s interests will be

important if those interests are to be protected.

On the other hand, a physical or sensory disability raises issues of access and may raise

issues of power that can be more readily accommodated in conventional approaches to

ADR. One needs to be particularly cautious about disempowering a person with such

a disability by taking steps that others may see as needed to protect his or her interests.

Responses to the discussion paper Those commenting on the discussion paper were asked:

5.1 Would it be desirable for ADR to be used more often in the disability field?

5.2 Are there adequate sources of ADR for people with disabilities in NSW?

5.3 Is there a need for a funded source of ADR focused on people with disabilities?

5.4 If there was to be such a specialist source of ADR for people with disabilities:

Should it have the characteristics suggested in the paper?

Should it be focused on people with all disabilities? If not, what disabilities

should be within its focus?

Should it be a new organisation or a development of an existing

organisation?

There was a strong view amongst respondents that it would be desirable for ADR to be used

more often in the disability field and that there were not currently adequate sources of ADR

for people with disabilities in NSW (in particular Astor, West, PWD, IDT, MDAA, ADB

responses). There was little dissent from this view. Innes felt that the necessary mechanisms

were available but he questioned whether there was sufficient disability training for personnel

in such mechanisms.

Various respondents supported the idea of a funded source of ADR focused on people with

disabilities. (PWD, Astor, IDT, West, ADB, Stelc, Whaite, BIA and Innes responses; CSC

focus group) Again, there was little dissent from this view. Family Advocacy felt that, whilst

it would be desirable to see more use of ADR with the safeguards outlined in the discussion

paper, this was not a funding priority. The Ageing and Disability Department felt that any

necessary development of ADR in government agencies could occur as part of their

obligations under the NSW Government’s Disability Policy Framework (Ageing and

Disability Department 1998, discussed further below). The Australian Foundation for the

Disabled felt that the rights of people with disabilities were already adequately protected.

22

There was strong support for (and no overt opposition to) any specialist source of ADR

having the characteristics suggested in the discussion paper. (Astor, IDT, West, Home Care,

Hennessy, Stelc, Innes and PWD responses; CSC focus group,) The ADB said that such a

specialist source would need to address the issues raised in the discussion paper. Innes

suggested that the body should also provide information and training about ADR to people

with disabilities and advocates/support people. As discussed in The role of the independent

above, the body could also take a lead role in standard setting for, and training or,

independents.

The weight of responses also favoured any such specialist source of ADR being focused on all

disabilities (Astor, IDT, West, Stelc and Innes responses, though Hennessy favoured a focus

confined to cognitive disability).

Respondents gave considerable thought to the organisational base of any specialised source of

ADR. Some were open minded as to whether this should be a new organisation (including

Innes, West, Astor, ADB, CSC focus group). Others clearly favoured the development of the

role of an existing organisation (including Family Advocacy and Hennessy responses).

Various respondents saw Community Justice Centres (CJCs) as having a key role in ADR for

people with disabilities. West and Innes saw a specialised branch of the CJCs as a suitable

base for a specialised source of ADR. Orr, MDAA and Family Advocacy favoured

strengthening the role of CJCs through extra resources and training.

In their response to the discussion paper, the Community Justice Centres set out their existing

role in providing mediation and facilitation services. The CJCs say that they deal with many

disputes involving people with disabilities. The Centres see their process as:

very suitable for resolving disputes between neighbours, family members and service

providers, dissatisfied clients and service providers [and] between families and

institutions.

The response said that the CJC mediation process may not be appropriate for all disputes

involving people with disabilities, “especially if the person cannot fully participate in the

process”. However, adjusting the process to assist the involvement of the person with the

disability is “daily practice” at the CJCs. Centres seek the assistance of specialist disability

organisations when appropriate. The need for and role of a support person in mediation is

determined at intake. For example, the support person may be a mental health worker. The

Centres recognise that people with disabilities may need “a different level of service” so that

they can fully participate in ADR. Centres continuously monitor their services including

seeking input from disability organisations.

In relation to the role of the mediator, the response said that openness and respectful

behaviour is the Centres’ good practice model. Mediators cannot insist on full sharing of

information for fear of sacrificing their neutrality. However, they can assist to avoid unfair

agreements through strategies such as reality testing and generating additional options.

Mediators can terminate a mediation, for example if a party is not mediating in good faith.

The response concluded by saying, “Perhaps one way of assisting people with disabilities is to

provide a specialist service within the Community Justice Centres”.

23

Some respondents had reservations about the existing role of CJCs. MDAA said its

experience of the Centres was mixed. PWD had “very serious reservations” about the role of

CJCs. The PWD response said that they had had quite a lot of experience with CJCs and had

been very unhappy with some mediations. PWD felt that an extension of the role of the

Centres might be satisfactory if a specialist division was created. An alternative would be

extend the existing role of the Community Service Commission.

The Community Services Commission is a statutory complaints and monitoring body

established under the Community Services (Complaints, Review and Monitoring) Act 1993.

Its functions include dealing with complaints about disability services funded or provided by

the Minister for Disability Services. It can refer such complaints for conciliation. However,

now the Commission is to become the Community Services Division of the NSW

Ombudsman (Community Services Legislation Amendment Act 2002). It would not be

appropriate to give the Division an expansive role in ADR at least until the impact of its

location under the Ombudsman becomes clear.

ADD (now the Department of Ageing, Disability and Home Care) noted the range of

government agencies that provide ADR and stressed the role of CJCs. ADD pointed out that,

under the Disability Policy Framework, all NSW government agencies are expected to adjust

their programs so that they can be used by people with disabilities. The Disability Policy

Framework is based on legal obligations under anti-discrimination legislation and section 9 of

the Disability Services Act 1993. However, in its review of the Disability Services Act in

1999, the Law Reform Commission concluded, “The section 9 process has largely failed to

achieve its aims and produce real change” (NSW Law Reform Commission 1999, 63). One

should therefore be cautious about the potential of the Disability Policy Framework alone to

ensure that mainstream ADR bodies are appropriate for people with disabilities.

A final important point made by Orr was that ADR processes should be promoted with

service provider organisations, possibly as part of their complaint policies. Orr said,

ADR should not be seen as a special thing to be invoked and undertaken by some

‘guru’ from a particular organisation. ADR is the realm of good practice in dispute

resolution and its use must be promoted wherever possible.

(Orr response)

There certainly is scope for less formalised approaches to ADR to occur in this way. The

detail of it is beyond the scope of this report. However, the dangers of ADR for people with

disabilities as spelt out in this report need to be borne very much in mind. The development

of such a role should occur through discussion between the Department of Ageing, Disability

and Aged Care, advocacy and service provider bodies, and people with expertise in ADR.

The specialist body proposed above could be a key player in such discussions.

24

CONCLUSION

This report makes out a strong case for developing the role of ADR in disputes involving

people with disabilities. This includes people whose cognitive disabilities severely impede

participation in the ADR process. In appropriate cases, ADR can be a very beneficial way of

resolving such disputes. There is a great danger that people with disabilities could be

disadvantaged in ADR but this report spells out ways of guarding against this.

If the role of ADR is to be developed without disadvantaging people with disabilities, the

approach set out in this report needs to be further developed and promoted in the ADR and

disability sectors. The optimal way of facilitating this would be through funding of a

specialist service, either stand alone or as part of an existing organisation. This report does

not purport to reach conclusions about the appropriateness of any particular organisation to be

auspice of a specialist service. However, in choosing an auspice, care would be needed to

ensure that the auspice was comfortable with a system of ADR along the lines proposed in

this report.

25

RESPONDENTS TO DISCUSSION PAPER

Organisations Anti-Discrimination Board NSW (ADB) Complaint and conciliation body

Ageing and Disability Department (ADD) Funding, policy and planning department

Australian Foundation for Disabled Non government service provider

Brain Injury Association (BIA) Peak brain injury body

Centre for Developmental Disability Studies Research body

Citizen Advocacy NSW Peak intellectual disability advocacy body

Community Justice Centres NSW (CJCs) Government mediation body

Community Services Commission (CSC) Independent complaint and monitoring body

(Written response and verbal response from a staff focus group)

Department of Community Services Disability and child protection service provider

Home Care Service of NSW

(Home Care) Government service provider

Illawarra Disability Trust (IDT) Advocacy and service provider body

Family Advocacy Disability advocacy body

Mental Health Coordinating Council

(MHCC) Peak council

Multicultural Disability Advocacy Association

(MDAA) Advocacy body

People with Disabilities NSW (PWD) Advocacy body

Individuals (Those below responded in their personal capacities, not on behalf of the organisations for

whom they work.)

Hilary Astor Professor of Litigation and Dispute Resolution,

University of Sydney

Nancy Hennessy Divisional Head, Community Services Division,

Administrative Decisions Tribunal

Graeme Innes Conciliator and tribunal member, past Chair,

Disability Advisory Council of Australia

David Mason Human Rights and Equal Opportunity Commission

Jan May Disability advocate

Elizabeth Morley Coordinator, Disability Discrimination Legal Centre

Jeanette Moss Disability advocate

Mark Orr Deputy Protective Commissioner

Victoria Pollard Guardianship Tribunal member Lisa Stelc Disability advocate

Roger West Former Commissioner for Community Services and

Guardianship Tribunal President

Anne Whaite Mediator and Guardianship Tribunal member

26

REFERENCES Ageing and Disability Department (1998). NSW Government Disability Policy Framework,

Sydney.

Ageing and Disability Department (1996). Strategic Issues Surrounding the Development of a

NSW Advocacy Development Plan, Discussion Paper No. 4, Sydney.

American Bar Association (1990). Mediation: The Coming of Age - A Mediator’s Guide in

Serving the Elderly.

Amy, D (1990). Environmental Dispute Resolution: the Promise and the Pitfalls, in Vigg and

Craft, Environmental Policy in the 1990s: Towards a New Agenda, CQ Press 1990, 211.

Amy, D (1987). Distorting the nature of environmental conflict, Chapter 6 in The Politics of

Environmental Mediation, Columbia Uni Press.

Astor, H. (1994). Dispute Handling Mechanisms at the Guardianship Board, unpublished.

Astor, H., and Chinkin, C. (1992). Dispute Resolution in Australia, Sydney, Butterworths.

Burgess, G, and Burgess, H (1985). Beyond the Limits: Dispute Resolution of Intractable

Environmental Conflicts, Chapter 8 in Blackburn and Bruce (eds), Mediating Environmental

Conflicts, Quorum.

Bush, Robert (1982). The Dilemmas of Mediation Practice – A Study of Ethical Dilemmas

and Policy Implications. Washington DC, National Institute for Dispute Resolution.

Cooks, Leda and Hale, Claudia (1994). Instruction of Ethics in Mediation, Mediation

Quarterly, Vol. 12, No. 1, 55.

Cocks, E., and Duffy, G. (1993). The Nature and Purposes of Advocacy for People with

Disabilities, Perth, Edith Cowan University.

Craig, Y. (1994). Elder Mediation: Can it Contribute to the Prevention of Elder Abuse and the

Protection of the Rights of Elders and their Carers, Journal of Elder Abuse and Neglect. Vol. 6

(1), 83-96.

Foberg, J. and Taylor, A.(1984), Mediation: A Comprehensive Guide to Resolving Conflict

without Litigation, San Francisco, Jossey Bass.

Gibson, Diane (1994), Issues Involved in Determining the Use of Mediation in the Family

Court of Australia. Paper presented at Arbitrators Institute of New Zealand Annual

Conference.

Haynes, J. (1996). Beyond Diversity: Practising Mediation, Conference Proceedings of the

Second International Mediation Conference, Adelaide, Adelaide,119.

27

Human Rights and Equal Opportunity Commission (HREOC) (1999), Practice Note: Public

Inquiries into Complaints under the Disability Discrimination Act.

Kelly, Joan (1996). A Decade of Family Mediation Research: Some Answers and Questions,

Conference Proceedings of the Second International Mediation Conference, Adelaide,149-

157.

Kelly, Joan (1995). Power Imbalance in Divorce and Interpersonal Mediation: Assessment

and Intervention. Mediation Quarterly, Vol. 13, No. 2, 85.

Lisi, L. and Burns, A. (1992). Mediation in Guardianship Cases: A Promising Alliance,

Clearing House Review, 1992, 644-645.

Love, A., Fisher, T., Maloney, L.(1996). Evaluation of Family Mediation Services in

Australia: Exploring Method Diversity, Conference Proceedings of the Second International

Mediation Conference, Adelaide 1996, 189.

Maloney, L., Fisher, T., Love, A. and Ferguson, S. (1996). Managing Differences: Federally

Funded Mediation in Sydney – Outcomes, Costs and Client Satisfaction. Attorney General’s

Department.

National Alternative Dispute Resolution Advisory Council (NADRAC) (1997). Issues of

Fairness and Justice in Alternative Dispute Resolution, Discussion Paper, Canberra.

National Alternative Dispute Resolution Advisory Council (NADRAC) (2001). A

Framework for ADR Standards, Report to the Commonwealth Attorney-General, Canberra.

NSW Law Reform Commission (1999), Report 91, Review of the Disability Services Act 1993

(NSW), Sydney.

O’Leary, R (1995). Environmental Mediation: What Do We Know, and How Do We Know

It?, Chapter 3 in Blackburn and Bruce (eds), Mediating Environmental Conflicts Quorum.

Paquin, Gary (1987-88). Protecting the Interests of Children in Divorce Mediation, Journal of

Family Law, University of Louisville School of Law. Vol. 26, No. 2, 1987-88, 279.

Park, M., Wood, E., and Gottlich, V. (1992). Developing a Legal Services Programme, Policy

on Alternative Dispute Resolution: Important Considerations for Older Clients and Clients

with Disabilities, Clearing House Review, October 1992, 635-643.

Parsons, R. and Cox, E. (1989). Family Mediation in Elder Care-giving Decisions: An

Empowerment Intervention, Social Work, March 1989, 122-126.

Preston, B (1995), Limits of Environmental Dispute Resolution Mechanisms 13 (2)

Australian Bar Review 148.

Prior, A., and Ryan, S. (1996). Children: the Silent Victims of Parental Dispute, Conference

Proceedings of the Second International Mediation Conference, Adelaide.

Redfern Legal Centre (1992), The Right to Have a Say – A Kit of Tools for Consumer

Participation, Sydney.

28

Shannon, B. (1996). Another Alternative: The Use of Moderated Settlement Conferences to

Resolve ADA Disputes Involving Persons with Mental Disabilities, Ohio State Journal on

Dispute Resolution, Vol 12:1, 147-156.

Shemberg, A. (1997). Mediation as an Alternative Method of Dispute Resolution for the

Individuals with Disabilities Education Act: A Just Proposal?, Ohio State Journal on Dispute

Resolution, Vol 12:3, 739-757.

Spencer, J. (1993). Characteristics of Mediation Conferences, unpublished.

Spice Consulting (1997). Consumer Involvement in Appeals of Transition Plans, Sydney.

Talbert, R. and Carp, N. (1995). Collaborative Approaches; Aging, Disability and Dispute

Resolution, Clearing House Review, October 1995, 638-642.

Thornton, M. (1989). Equivocations of Conciliation: the Resolution of Discrimination

Complaints in Australia, Modern Law Review (6), 733-761.

Report of the Working Party on Appeals and Complaints Mechanisms for Community

Services in NSW (1992), Department of Community Services, Sydney.

Simpson, J. (1996). Procedures for a Tribunal’s Purpose, 21(3) Alt LJ 118.

ACKNOWLEDGMENTS

The author thanks all who responded to the discussion paper. Many of the respondents put

considerable time and thought into their responses.

Hilary Astor shared various references with the author and provided great encouragement.

For many years, the Law and Justice Foundation of NSW has been a strong supporter of

projects assisting people with disabilities. The project could not have occurred without the

Foundation’s funding.

The Guardianship Tribunal NSW is currently undertaking a pilot conciliation project which

has been informed by the project. The Tribunal assisted with photocopying and postage.