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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THANK YOU