The author wishes to thank Assoc. Prof. Mary Anne Noone for her contributions to this research and Ms Kate Digney for excellent research assistance. Funding for this research was provided by the Faculty of Law and Management, La Trobe University, Australia through its Faculty Small Grant Program. Sincere thanks to all participating Community Legal Centres and staff members interviewed.
Executive Summary
This report focuses on the use of Alternative Dispute Resolution (ADR) by Community Legal Centres (CLCs) to improve access to justice for disadvantaged members of the community whom they service.
The aim of the research was to investigate CLCs’ use of ADR and ADR services; perception of CLC lawyers of ADR and the recent expansion of ADR within the justice system both in Victoria and at the Commonwealth level. The following are a summary of the research findings and recommendations.
Definition of ADR
The research found inconsistencies amongst participating CLCs in definitions of ADR. Whether CLCs considered themselves as providing ADR services depended on how they defined ADR.
There were diverging views about what constitutes ADR and processes that have been widely accepted as ADR were not considered ADR by some participating CLCs.
Awareness of ADR services and processes
The research found participating CLCs were aware of Alternative Dispute Resolution (ADR) services and processes, but level of awareness differed amongst the participating CLCs and staff.
Relevance of ADR to work of CLCs and Access to Justice
There were varying views between CLCs and within CLCs on the relevance/importance of ADR to the work of CLCs.
Some participating CLCs felt ADR was very important while others felt they had very limited relevance to the work of CLCs. Participating CLCs raised issues including power imbalance between disputing parties; limited availability of legal assistance to ADR disputants where required; lack of knowledge of the law on the part of ADR facilitators; and the impact of ADR processes on public interest litigation and test cases as issues that may impede ADR processes from improving access to justice.
ADR, CLC Lawyers and CLC Clients’ best interest
Those participating CLC staff who felt ADR processes were relevant to their work felt CLC clients often experience difficulties including: dealing with legal issues on their own; negotiating agreements in their own best interests; and effectively participating in a mediation or negotiation process. They believe further that these difficulties are further compounded by power disparity between parties. Thus CLCs lawyers are either reluctant about sending their clients to an ADR 3 process or would rather act in an ADR process on behalf of their clients in line with legal practitioners’ obligations toward their clients.
Mandatory ADR
The research found participating CLCs were of the view that the move towards mandatory or compulsory ADR would compromise traditional goals of ADR which were to give disputants a voluntary, no cost choice of dispute resolution processes.
Quality and standard of ADR services Concerns were raised about the quality of ADR services, including application of different standards by different ADR providers. Participating CLCs were of the opinion that differing standards result in inconsistencies in approach and outcomes and ultimately negatively affect ADR’s potential to deliver justice.
The possible failure of ADR to deliver justice makes it an unattractive process considering the stringent justice goals of CLCs.
Collaboration between CLCs and ADR services
Some CLCs were positive about collaboration between ADR service providers and CLCs but were of the view that co-locating ADR services with CLCs and provision of ADR services by CLCs might result in conflict of interests. However, there were diverging views on the gravity and significance of such conflict of interests. Most CLCs welcomed the opportunity to partner with ADR service providers but were of the view that the expansion of ADR should proceed with caution.
Emphasis was placed on the need to work out detail of such partnerships in a manner that accommodates the ethical requirements of various professions involved; the traditional role of CLCs; and the traditional elements of some ADR processes and practices.
The Expansion of ADR
In relation to the expansion of ADR, most participating CLCs welcomed the expansion as they would prefer clients, particularly in civil matters, to resolve their disputes using ADR processes (non-adversarial processes).
However, many interviewees raised issues with ADR’s ability to deliver justice (as mentioned in 1.
Some also queried the governments’ motivations for expansion of ADR. They were of the opinion that the expansion of ADR is driven by associated costsavings on the part of the government rather than the need to provide justice for disadvantaged members of the community. Some queried whether impacts of the 4 expansion, including necessary systemic and structural requirements, have been adequately considered.
Role of CLCs in expansion of ADR
There were diverging views on the role CLCs might play in the expansion of ADR. Some CLCs were of the opinion that CLCs had no role in the expansion whilst others saw CLCs as having a major role in relation to educating clients about ADR processes. This education will include information about ADR and what is expected of clients in an ADR process and providing legal advice to clients preand post-ADR sessions. Provision of legal advice/assistance to clients throughout the ADR session was also seen as critical to the protection of clients’ interests.
Some CLCs even saw a greater role for CLCs through provision of assistance to unrepresented clients appearing before magistrates to resolve their matters through an ADR process. For this to happen, magistrates would be required to refer unrepresented litigants in civil matters to CLCs. This was considered to be an important aspect of protecting the interests and rights of disadvantaged members of the community who often cannot afford legal representation and for whom adversarial processes may result in further injustice and alienation.
Summary of Recommendations:
ADR stakeholders should develop training for CLC staff on ADR processes to create an awareness of ADR processes and potential benefits for CLC clients; ADR service providers should ensure that information of parties’ legal rights are provided to them prior to the process and that parties (particularly vulnerable parties) are allowed legal representation during ADR processes; Both the Commonwealth and Victoria governments should provide more funding to support research into and roundtable discussions on the involvement of CLCs in the expansion of ADR; More research is also required into the justice quality of ADR particularly for disadvantaged members of the community; Collaboration between CLCs and ADR stakeholders should be encouraged and/or strengthened in order to improve access to ADR services for community members; Collaboration and co-location should involve discussion around the interests and obligations of each profession/field involved to ensure those interests and obligations are adequately catered for; A co-location pilot should be funded to determine whether perceived benefits of co-location of ADR and CLC services would materialise to improve access to justice for disadvantaged members of the community.
Introduction
Australian research reveals many barriers to accessing the legal system, particularly for disadvantaged members of the community. While there is currently no evidence on nation-wide legal needs in Australia,1 there are statespecific studies and findings. The Access to Justice and Legal Needs research program survey, conducted in NSW in 2003, identified that of those survey participants who sought assistance for legal issues only 25. 6 percent sought assistance from a legal adviser. An overwhelming 74. 4 percent sought non-legal assistance. Barriers limiting access to the justice system are a concern for both State and Commonwealth governments.
In 2008, the Australian Federal Attorney General requested the National Alternative Dispute Resolution Advisory Council (NADRAC) to look into increasing the use of Alternative or Appropriate Dispute Resolution (ADR) to improve access to justice: It is very important to encourage parties to civil proceedings to make greater use of ADR to over come court and tribunal barriers to justice … I would like NADRAC to enquire into and identify strategies for litigants, the legal profession, tribunals and courts to remove barriers from and provide incentives to ensure greater use of appropriate dispute resolution options as an alternative to civil proceedings and during the court or tribunal process.
In addition, series of semi-structured interviews with staff members of CLCs was conducted to gather data on: CLCs and the provision of ADR processes; referral practice to ADR services and the provision of onsite ADR services; the attitude of CLCs to the current expansion of ADR at both levels of government. The aim was to limit the project to five CLCs as the research was considered a pilot which, based on findings, could be extended to other CLCs and other issues relating ADR and CLCs.
Ethics approval was sought from the La Trobe University, Faculty of Law and Management Human Ethics Committee prior to data collection. The Committee reviewed all aspects of the project including: the aim and objectives of the research; research methodology; project timeline; participant recruitment procedure and instruments, including Participant Information Sheet, Consent and Withdrawal of Consent forms; storage of data; and issues relating to confidentiality. A minimum of two staff members were interviewed at each CLC. Each interview lasted between 30 mins to 1 hour 30 mins over a period of 3 months, from December 2009 to February 2010. Data collected from the interviews were transcribed using the Nvivo qualitative research software and checked for accuracy.
The Nvivo research software was also used for thematic analysis and identification of recurring themes.
Conceptual, Historical and Practice
Background Access to Justice Defining access to justice is particularly significant as definitions impact on policies which in turn determine funding and availability of services. Access to justice has been defined in various ways. Cappelletti and Garth refer to it as a ‘system by which people may vindicate their rights and/or resolve their disputes under the general auspices of the state’. It consists of guaranteeing equal access and achieving just outcomes. It could also simply refer to ‘mechanisms by which an individual may seek legal assistance’. Access to justice requires guaranteeing the right of access and making available gateways to access. In Australia, the right of access to justice is undisputed. All persons have a right to access the justice system but avenues through which the right of access may be exercised have been the subject of access to justice reforms. How do disadvantaged persons or groups including women, migrants, the poor, persons with a disability, indigenous Australians, fair in accessing justice? Is there sufficient public information about available services? How do associated costs affect access? Are available services suitable to perceived needs? Access to justice is considered a crucial element of the rule of law.
Federal Attorney General, Robert McClelland in 2009 said: Access to justice is central to the rule of law and integral to the enjoyment of basic human rights. It is as an essential precondition to social inclusion and a critical element of a well-functioning democracy. Access to justice is linked with liberal democracy, and particularly values such as equality, liberty, human rights and justice which underlie access to information, access to courts, access to legal representation, equality before the law with a particular focus on meeting the needs of disadvantaged members of the society.
The most current research was carried out by the Attorney General’s Department’s Access to Justice Taskforce with report released in September 2009. The 1994 report construed access to justice very broadly to include equality of access to legal services, national equity in terms of access to the legal services market and equality before the law. In addressing equality of access to legal services, the committee considered access to justice as including access to ‘effective dispute resolution mechanisms necessary to protect … rights and interests’ and not only to the formal justice system. Thus, access to justice goes beyond access to courts and strictly legal services.
The most recent work on access to justice by the Federal Attorney General’s Department uses even, a much wider construction. The Report referred to ‘waves’ of access to justice reform identified earlier by Cappelletti and Garth. Wave 1 equates access to justice with access to legal services; Wave 2 equates access to justice with ‘correcting structural inequalities within the justice system’; Wave 3 equates access to justice with ‘informal justice and its importance in preventing disputes from occurring and escalating – including greater use of non-adversarial alternatives to legal justice’; and Wave 4 is about ‘[I]mproving access to justice by focusing on competition policy’, particularly, reform of legal profession rules to reduce the cost of legal services. 1 Furthermore, access to justice is: [n]ot only about accessing institutions to enforce rights or resolve disputes but also about having the means to improve ‘everyday justice’; the justice quality of people’s social, civic and economic relations. This means giving people choice and providing appropriate forum for each dispute, but also facilitating a culture in which fewer disputes need to be resolved. Claims of justice are dealt with as quickly and simply as possible – whether that is personally (everyday justice) informally (such as ADR, internal review) or formally (through courts, industry dispute resolution or tribunals). And: Improving access to justice requires improving access to formal and informal justice mechanisms and improving the justice quality of daily life.
More importantly, the report recognises the need for various institutions to work together to achieve the goal of improving access to justice: Improving access to justice requires a broad examination of how the system and its various institutions influence each other and work together to support or limit people’s capacity to address legal problems and resolve disputes. Access to justice thus defined should have the ultimate goal of affecting peoples’ everyday experience of justice. Where the right of access is guaranteed, the avenue through which it will be exercised must also provide justice and the overall result should be improved quality of everyday justice for all members of the community.
While not limiting the wide ramifications of access to justice, the project focuses on provision of alternative dispute resolution services by community legal centres in order to improve access to justice.
Alternative (Appropriate)
Dispute Resolution ADR comprises of various processes of resolving disputes. It has been defined by the National Alternative Dispute Resolution Advisory Council as: …an umbrella term for processes, other than judicial determination, in which an impartial person assists those in a dispute to resolve the issues between them. ADR is commonly used as an abbreviation for alternative dispute resolution, but can also be used to mean assisted or appropriate dispute resolution.
Some also use the term ADR to include approaches that enable parties to prevent or manage their own disputes without outside assistance. This definition addresses issues raised in regards to the use of the word ‘alternative’ which has been argued connotes ADR processes are ‘alternative’ to court processes. It has also been argued that ‘alternative dispute resolution’ “sounds a rather marginal activity undertaken by old hippies” Sir Lawrence Street recognises the debate on the meaning of ‘ADR’ and in particular what ‘A’ in ADR stands for but argues that ADR describes: …an holistic concept of a consensus-oriented approach to dealing with potential and actual disputes or conflict.
The concept encompasses conflict avoidance, conflict management and conflict resolution. The over-arching element of ADR in addressing these three aspects of conflict is the consensus-oriented philosophy that pervades the newly evolving recognition that conflict avoidance, management and resolution are simply three closely related sequential approaches each of which has relevance and application within the broad field of social, commercial and personal interaction. This is inherently the province and function of ADR. ADR is viewed as an all encompassing process of dispute or conflict management, avoidance and resolution and processes may fall into three categories: facilitative, advisory and determinative.
Advisory processes, such as conciliation or expert appraisal, employ a practitioner to advise the parties about the issues and/or possible outcomes. Determinative processes, such as arbitration, involve a decision being made by the third party. There are also other types of ADR such as collaborative practice.
History of ADR in Australia
The history of ADR in Australia dates back to the 70’s with steady growth from the 80s. According to Sourdin, advisory and determinative processes were popular prior to the 70s, and afterwards came non-determinative processes in the late 70s and early 80s. Various explanations have been provided for the exponential growth of ADR, the institutionalisation of ADR within the justice system being a major factor. Other factors include low cost, faster and more efficient proceedings, flexibility, outcomes which reflect parties’ perceptions of justice or fairness, empowerment of parties and voluntariness. Regardless of the positive comments on ADR, it has been criticised as providing a form of ‘second-class justice’ which diminishes the traditional justice system, and in certain circumstances, entrenches power imbalance which exists between the parties. It appears though that the benefits of ADR are perceived to outweigh the criticisms and ADR has overcome initial reluctance, particularly, of members of the legal profession to embrace it and view it as an important part of the legal system.
Access to Justice and Alternative Dispute Resolution
CJCs’ connection to access to justice is evident in the second reading speech by the then NSW Attorney-General and Minister for Justice: …services offered by a Community Justice Centre will be available to anyone who seeks to avoid the expense and frustration of court proceedings, or who is simply searching or a way to resolve a dispute, even of an inter-family nature, without suffering the embarrassment of confiding in friends, relatives, or the impersonal countenance of the legal profession. CJCs are said to have kept the flame of ADR alive. Williams stated: CJCs are unique in their accessibility. Services are provided on request to any person or organisation. There are no waiting lists, no means test and no cost to the participants. If necessary, interpreters are provided. Time and venue are flexible. Services are provided across NSW including geographically isolated places. Partnerships with organisations …ensure access for disadvantaged persons.
CJCs have a particular awareness of multicultural and Indigenous issues and are active in developing greater access for people with disabilities. As discussed earlier, the Access to Justice Advisory Committee (AJAC) was commissioned in 1994 ‘… to make recommendations for reform of the administration of the Commonwealth justice and legal system in order to enhance access to justice and render the system fairer, more efficient and more effective’. In its report, the Committee made the following recommendation: All Australians regardless of means should have access to high quality legal services or effective dispute resolution mechanisms necessary to protect their rights and interests.
ADR was recommended on condition that power-imbalance issues are addressed and periodical evaluation of services carried out. The Committee recommended establishment of a non-statutory body to advise the Commonwealth Attorney-General on ADR. This led to the establishment of the National Alternative Dispute Resolution Advisory Council (NADRAC) in 1995. NADRAC has since been vigorously performing its functions. An area of impact of NADRAC’s work relates to the relationship between ADR and access to justice. If ADR is seen as part of the access to justice movement, what type of justice could it be said to provide? As noted above, access to justice extends beyond access to legal services or courts.
In a discussion paper on fairness and justice released in 1997, NADRAC opined ‘that fairness and justice in ADR need not necessarily equate with justice under the formal legal system’ but there is a need to maintain procedural justice in providing ADR services particularly for the benefit of disadvantaged members of the community, including women, minority cultural groups, people with disabilities, people living in rural and remote communities and people with low socio-economic power. NADRAC noted that in certain instances, ‘giving control to the parties rather than a third party decision maker … may do grave injustice to one of the participants, or fail to take into account the interests of vulnerable third parties or of matters of public interest’ and as such, certain measures must be put in place to address injustices that may result from use of ADR processes.
It was acknowledged that ADR processes may deliver ‘individualised justice’ characterised by a sense of attentiveness, impartiality and fairness. 49 Access to justice was viewed as procedural justice, in terms of having a fair process, and distributive justice in that the process must be proportionate to the ‘complexity and importance of each dispute’. Whilst the ALRC acknowledged the benefits of ADR processes, it argued, in the context of the terms of reference, that ADR should not be seen as ‘the’ solution to the shortfalls of the civil justice system. Some of the concerns raised include lack of concrete evidence that ADR reduces court workload and provides ‘a satisfying form of justice’. Other concerns relate to the efficiency and suitability of ADR processes and the eplacement of lawyers with ADR practitioners who may be unable to, because of the requirement of neutrality, provide legal advice to the parties. Lack of advice may mean that parties enter the process without knowledge of their legal rights and as a result become disadvantaged or end up with a ‘lesser justice’. The Commission recommended empirical evaluation of the effectiveness of ADR within the justice system52 and more generally, a holistic approach to the reform of the justice system which acknowledges the importance of contributions of various legal and quasi-legal service providers and institutions. In promoting the justice quality of ADR, NADRAC prepared a guide titled “A Fair Say” for users of ADR processes, in particular, mediation and conciliation.
This raises the issue of the quality of training received by practitioners and the personal qualities of the practitioner involved. NADRAC has noted ‘care should be exercised in referring to [ADR processes] as offering ‘access to justice’ where it implies having ‘a decision according to law or a legal process with all its inherent procedural protections’. However, NADRAC acknowledged that ADR processes are fair and also emphasised the need for practitioners to be skilled in identifying and addressing power imbalance issues. NADRAC stated matters involving ‘severe power imbalance, safety and control’ are not suitable for ADR but family violence should not automatically exclude a matter from ADR.
Another complexity in relation to evaluating the justice quality of ADR is the diversity of ADR processes. Even with mediation, one of the processes of ADR, there are many models requiring different steps and practice skills. Diversified processes and practice make it difficult to determine what works in terms of providing justice and what does not. Noone, in relation to transformative mediation said: The approach taken by a transformative mediator could be construed as amoral or insensitive to issues of discrimination and bias. … The flaw …is that it assumes parties have the capacity, are informed, can communicate with each other and have the requisite knowledge to make just and reasonable agreements.
Improving access to justice by providing fair and cost effective dispute resolution processes To achieve the above ends, the government spent $3. 5 million on alternative dispute resolution and trained 110 mediators. As a follow up to ‘Justice Statement 2004’, the Victorian government through the Justice Department released ‘Justice Statement 2’. Attorney General, Rob Hulls stated that more could be done in the area of equal opportunity in terms of ‘addressing systemic discrimination’ with a focus on the cost of justice, ADR, the civil justice system and the court system. Major reforms sought include expanding ADR in Victoria for the benefit of the community, businesses and industries. Mediation in the community will be encouraged and, if people need to go to court, the courts will actively seek out ways to identify the core issues in dispute and resolve them using ADR techniques’. It was also mentioned that the government will seek to provide incentives to encourage parties to resolve disputes outside the courts. It was acknowledged ADR is a means of increasing access to justice for members of the community experiencing financial difficulties. It can also reduce the costs to the courts and to the government’. It is important to note that the Victorian Government’s justice initiatives in regards to meeting the legal needs of the disadvantaged focuses mainly on the criminal ustice system although there is acknowledgement of need for assistance where protection of rights is an issue. Part of the access to justice initiatives in Justice Statement 2 was to establish an ADR Directorate, pass legislation introducing judge-led ADR and referral of intervention order applications to ADR.
Above n 64 at 39. 66 67 20 now confers power on judges, associate judges and magistrates to conduct judicial resolution conferences. The Act also provides for grant of judicial immunity to judges, associate judges and magistrates when carrying out judicial resolution conference functions. The Act does not limit judicial resolution to mediation and conciliation; it includes other forms of ADR. An ADR Directorate has also been established to implement the government’s ADR initiatives. The Victorian Law Reform Commission undertook a review of the civil justice system recommending reform.
In its 2008 report, the Commission acknowledged ADR ‘is part of government policy at both state and federal levels’. Proposals made by the Commission recommended ‘greater and earlier use of ADR in the civil justice system generally and in Victorian courts in particular’. The Commission took a wider view of ADR recommending processes other than mediation already widely used by Victorian Courts. Processes recommended include: early neutral evaluation case appraisal mini-trial/case presentation special masters court-annexed arbitration special referees conciliation conferencing hybrid ADR processes collaborative law industry dispute resolution schemes.
The Committee was of the opinion that a variety of ADR options ‘would assist the courts to more efficiently and effectively manage the diverse types of disputes in the court system. In other words, the existing limited menu of ADR options should be expanded to a more comprehensive smorgasbord’. It is important to note that the Commission supported provision of ADR services through the courts on the basis that the court possesses some kind of authority and credibility which could influence, persuade or assist parties to resolve their disputes. In addressing the issue of access to justice, the Commission focussed on the cost of access and noted that ADR processes may assist in reducing the cost of access to justice but: … such costs may be less than the costs incurred if the matter proceeds to trial.
Generalisations about the likely costs consequences of many of the commission’s civil justice reform proposals are fraught with difficulty. Courts at every level of hierarchy are now required to provide alternatives to court processes for the resolution of disputes. Victorian Government AttorneyGeneral, Rob Hulls, on the importance of ADR, the extent to which ADR now forms part of the justice system in Victoria, and expanding the use of ADR processes said: ADR is really the key theme of assisting people to resolve disputes outside the courts system. ADR; some people call it Alternative Dispute Resolution; I prefer to call it Appropriate Dispute Resolution – because we want disputes resolved in the most appropriate way.
Well, in what will be an Australian first, what we intend to do is, not just expand ADR right around the state, in regional and rural Victoria, encourage people to resolve their disputes, outside the court process – but if ultimately, the dispute has to get to court, we’re going to actually have judges trained in dispute resolution. So we will, for the first time in Australia, we will have judge-led mediation. In 2007, the Victorian Parliament commissioned the Law Reform Committee to undertake an inquiry into alternative dispute resolution. The terms of reference included consideration of the ‘the reach and use of ADR mechanisms’ and its capacity to improve access to justice among other things. In report released in May 2009, the Committee stated that ADR ‘has a significant potential to increase access to justice’ for disadvantaged members of the community. This ability flows from perceived benefits of ADR including minimised cost, quicker resolution of disputes, availability of non-adversarial processes and ‘remedies … adaptable to the needs’ of parties. The committee also pointed to ‘diverse range of services’, but which has also been criticised as a leeway for confusion on the part of consumers who would be unable to distinguish between services in terms of process and quality.
The concern that the private nature of ADR, that is, privacy and confidentiality of the process and outcome, ‘may hide systemic issues from public scrutiny’ was acknowledged. The Committee recognised that individual benefits must be balanced with public interests in providing ADR processes. 81 Under the Family Law Act 1975 (Cth), parties to a family law dispute are required to attempt resolution through family dispute resolution before certain orders may be made by the court. Family dispute resolution is a process ‘in which [an independent] family dispute resolution practitioner helps people affected, or likely to be affected, by separation or divorce to resolve some or all of their disputes with each other’. The Act provides that parties seeking certain orders must provide a certificate from a dispute resolution practitioner to the effect that they have a made a genuine effort to resolve the dispute. Victoria Legal Aid provides a free ADR service ‘that helps parents going through separation or divorce resolve family disputes. This service is offered through the Roundtable Dispute Management (RDM) service which is said to help ‘people to avoid costly court action … sort out issues quickly and confidentially, in a safe and supportive environment. ’ The RDM service thus provides avenues to parties who are entitled to legal aid to attempt to resolve their disputes by an accredited85 family dispute resolution practitioner.
Its broad vision is to: … enhance community involvement in, and ownership of, the justice system. It will respond to, and engage with, the community in addressing issues and concerns, thereby creating a justice system which, over time, is more integrated, responsive, accessible and more effective in reducing crime, addressing the underlying causes of criminal behaviour and increasing access to justice’. The NJC will seek to increase access to justice by providing a range of services on-site including mediation (ADR). The NJC also, has as one of its aims diversion from traditional court processes and building community capacity to address dispute. The aim of building community capacity to andle conflict is in line with the goal of the federal Attorney General to provide ‘everyday justice’.
Community Legal Centres
Community Legal Centres focus on providing legal services to the disadvantaged members of the public who would not otherwise have the means of accessing mainstream legal services because of associated costs and/or lack of relevant information. Tomsen and Noone report governmental support for the work of CLCs and the growth of CLCs in Australia is part of legal aid developments in the 70s and 80s with formal acceptance as part of legal aid coming late in 1983. 90 CLCs are now divided into two main streams, generalist centres and specialist centres.
An estimated number of services provided by CLCs across Australia during the 2007/2008 financial year include: over 140,000 information, support and referral services more than 210,000 individual advices over 50,000 individual cases over 2,600 community legal education projects around 1000 law reform or policy projects. Emphasis has been placed on rights-based approaches and providing access to justice. The National Association of Community Legal Centres (NACLC) offers a detailed description of services and values of CLCs: At the root of their work are the concepts of justice, human rights, and community. These values affect not just the outcomes of CLC work but the processes they use.
A rightsbased, holistic, community development approach to legal service delivery means CLCs try and deal not just with the immediate legal problem of their clients, but with other broader social problems. CLCs understand the value of early intervention and prevention. They seek to educate the community about the law, and empower community members to avoid legal problems in the future. Where laws or policies clearly disadvantage particular groups, CLCs describe the problems to governments and corporations and offer fairer solutions.
Access to Justice and Community Legal Centres
CLCs provide access to justice to disadvantaged members of the community.
The NACLC has identified ‘insufficient and inequitable funding to individual CLCs’, ‘fragmentation of government funding’ and insufficient funding for capacity building and workforce developments as major barriers to the providing access to justice. 98 Noone and Tomsen have also identified funding as a barrier to provision of services by CLCs. Whilst governments recognise that CLCs provide ‘value for money’, the practice has been to provide additional funds which are not commensurate with ‘increases in running costs’. In addition, provision of funding by governments has created a tension between traditional legal services and the social inclusion, ‘preventive and social change’ focus of CLCs. 00 Noone and Tomsen report that increased commonwealth funding for CLCs resulted in an ‘interventionist approach’ in which the Commonwealth sought to ‘control and direct its expenditure’ thereby limiting the range of services provided by CLCs. 101 Furthermore, tension between providing services crafted to meet community needs and services directed by governments who provide funding to CLCs was also raised. This is contrary to the position which obtained at the time CLCs were established and funded by the community. Giddings and Noone note that CLCs were originally established to provide non-traditional legal services to disadvantaged members of the public.
Regardless of this connection, there is little empirical data on the link between ADR and CLCs or whether ADR is relevant to the work of CLCs. The aim of the research is to investigate this grey area to see what CLCs do in relation to appropriate dispute resolution. CLCs generally pride themselves as having a holistic approach towards addressing their clients’ needs. They ‘employ a wide variety of strategies to work towards the best outcomes for their clients and their communities’. It has however been noted that providing appropriate services to clients is becoming increasingly more difficult due to ‘limited resources and competing client priorities’. The NACLC has developed a ‘Strategic Service Delivery Model’ to assist CLCs in meeting clients’ needs.
This model requires a multi-disciplinary approach involving an assessment of community needs; a survey of other legal service providers and community organisations; a plan of service delivery including early intervention, capacity building and preventative measures; collaboration with other service providers; delivery of service using various means including law reform; legal education, test cases, provision of accessible services; referrals and partnerships with other service providers. The Federation of Community Legal Centres, Victoria states: The multi-disciplinary approach used by CLCs works effectively in disadvantaged communities and is flexible and responsive in targeting services towards areas of need. CLCs need to employ a multi-skilled team to effectively implement this model.
Whilst there is no direct mention of ADR in the multi-disciplinary model, some CLCs provide dispute resolution services to their clients. In report of a Joint Review of Western Australia CLCs, it was stated that some Western Australia CLCs participate in ADR including conciliation and mediation, and majority of CLCs are looking towards providing mediation services. 107 This indicates the diversified nature of CLCs across Australia. This diversification may be positive, in terms providing a range of services, but as Giddings and Noone note, it also ‘reflects the lack of cohesive, national approach to … continuing development.
The Federation stated upfront that the submission was not representative of a collective view of all CLCs in Victoria. Whilst it acknowledged the need for stand alone mediation centres, areas of concern included voluntariness of process, selfdetermination, issues to be mediated and coercion. One major concern was mediating disputes involving power imbalance: Parties that opt for mediation should be carefully screened and this process must take into account the power status in relationships; the appropriateness of a legal remedy; the general likelihood of ‘success’ and the state of the dispute. If the ‘state’ is a crisis situation – mediation would probably be inappropriate. The Federation was not convinced ADR could provide access to justice.
Access ‘to law and the legal system’ was considered of so much importance that: [p]hilosophically, we find it difficult to subscribe to conciliation or compromise approach. We encourage our clients to assert their legal rights in a win or loose situation. 110 The Federation was also of the opinion that mediation centres should not be identified or collocated with legal centres or other governmental agency: We are strongly opposed to locating the Centres near a court or court associated building. We stress our opposition to any move to locate the Centres in any disused court houses. On the involvement of CLCs, the Federation submitted that CLCs’ are not ‘appropriate venue[s] for such a centre’ because they ‘should where possible e the advising agency on the legal rights of the disputants’. CLCs could, however, refer clients to mediation centres and provide legal advice to clients. There was also a recommendation that the dispute resolution centres should not be referred to as ‘Community Justice Centres’ because ‘Justice involves notions of adversarial conflict and is associated with the more traditional methods of dispute resolution’. Although there are still concerns relating to power imbalance and suitability of ADR processes, the Federation’s attitude to ADR has changed in some regards. In a submission to the Victorian Parliament Law Reform Committee, the Federation of CLCs, Victoria stated:
Federation of Victorian Legal Centres, Submission to LACV on Dispute Resolution Options, November 1984 at 2.
Whilst endorsing the advantages of ADR as a way of improving access to justice for CLC clients, some barriers for people from ‘low-income and disadvantaged backgrounds’ were identified: financial costs associated with ADR; the difficulty of obtaining adequate legal advice and representation; the emotional and psychological costs of participating in ADR, particularly when self represented; disability or mental illness; and for culturally and linguistically diverse (CALD) clients, cultural and linguistic barriers, particularly when exacerbated by an inability to obtain assistance from an interpreter. The Federation was also concerned that increased use of ADR might ‘stifle public interest litigation’. The Federation identified a limited role for CLCs: providing legal advice to disadvantaged parties in an ADR process but raised funding as an issue. Whilst referral and provision of legal advice have been identified as roles CLCs could play in ADR, the latter is plagued by lack of, or low funding and no significant contribution has been made by CLCs in relation to the former. During the 2007/2008 financial year, only 3. 4% of CLC clients were referred to dispute resolution compared with15. 5% and 3. 5% referred to private lawyers and courts and tribunals respectively. The Dispute Settlement Centre of Victoria reports that in 2008, 2. 4% of its clients were referred by Victoria Legal Aid and CLCs.
In addition, there is no direct mention of CLCs at both the commonwealth and state levels in reforming the justice system to expand and promote ADR but governments at all levels acknowledge the work of CLCs in addressing disadvantage through meeting legal needs and providing access to justice. The implication is that where ADR reforms are not extended to CLCs, it may diminish efforts of the government to promote access to justice through ADR. This is more so given the number of CLCs and people who approach CLCs for legal assistance. With compulsory mediation operating within most court jurisdictions, there could be a further reduction in costs where parties are referred directly to ADR by CLCs in the first instance rather than attending court only to have the matter referred to ADR within the court system.
Overall, most participating CLCs use ADR skills and ADR processes, particularly negotiation in their daily work. Some interviewees had not considered some of these processes as ADR until their involvement in this project. Generally ADR was viewed by interviewees as an alternative to the court process: It is a way of resolving disputes without having to resort to a litigious option, a court-based option, hopefully with a view to providing an environment where the parties can negotiate effectively to that end. … a complete alternative to court because it may enable a person to negotiate an outcome. I would say it is an opportunity for people to come together presenting their points of view, with someone facilitating that conversation.
It does not have a litigious part about it, does not have a punishment part about it, it does not have an inducement …it is very much about what is in the hearts of the people who are involved in it …it relies on the goodwill of the people involved, it relies on a degree of expertise, the expertise of the person managing it or resourcing it needs to be fairly high …sole function is to facilitate the flow of conversation and your role is to tidy it up and put a little ribbon on it and say here we go. The last definition focuses on facilitative processes and all definitions focus on the non-adversarial characteristics of ADR Not all interviewees viewed alternativeness to courts as a guarantee for non-adversarialism: …you can be alternative to the courts and still be adversarial…so just because you are not in the courts does not mean it is not adversarial…a mediation itself can be adversarial. Some interviewees also defined ADR in terms of the role and expertise of the dispute resolution practitioner and ADR’s role as a process facilitating community cohesion: …the notion of ADR I think has two different versions.
One for me is the ADR practitioner being the expert, a lawyer or [other experts] … the other is the community based mediation where you have co-mediators and you attempt to have some parallelism between the … mediator and the people 31 so you might have an older person and a young person or you might have someone from two different languages and that model is demonstrated in attempts to have indigenous mediators in the Disputes Settlement Centre… and I think those two versions are two quite different one. The community model of ADR was preferred by some interviewees because it is thought to have the potential to address hierarchical decision making and incorporates checks and balances into the process.
Other definitions focussed on how ADR is being used by the government: I define it as something that may be a preliminary step in getting to court …in same sort of legal framework but the potential for solutions may be more immediate and may be more creative and may be different … This definition views ADR as operating in the shadow of the law; as part of the justice system but with an advantage over adversarial and determinative court processes, focusing on creativity – allowing parties to be creative in generating options that may resolve the matter for them – and facilitating a quick resolution. Negotiation occurs on the doorsteps of courts in the shadow of the law. There were perceptions that whatever is referred to as ADR should be cost free and not compulsory.
Locating ADR services within courts, and probably the court system was viewed by one interviewee as having a potential to diminish the value of ADR: …but I think if you had more regionalised outlets it would be more likely that people would see those as resources rather than if there are only a few and they are all in courts then they are all in the shadow of the courts rather than trying to build a stronger feeling of community. Another definition focused on the cost of ADR. ADR would benefit CLC clients because it is generally considered as involving low costs, an advantage over court processes: My understanding of ADR is … a no cost or little cost option for people to try and resolve a disagreement or a dispute … quickly. Most CLCs were very particular about the cost to clients of using ADR processes.
For most, ADR has to be cost free or involve minimal cost: And another thing I would say is ADR has to be cost free. So all these industry schemes are cost free, family law has various ADR processes but if your lawyer is charging you $250 an hour, I am not sure I would describe it as ADR … ADR needs to be cost free or relatively cost free. Most CLCs would encourage clients to consider ADR processes because of the cost advantages to their clients: … lawyers would try and explain to the people what the costs and benefits were of the systems… We try and resolve matters really in a most cost effective way for clients … An ADR incentive for CLCs is therefore low cost.
But in some cases compulsory ADR has been viewed as increasing cost for clients, particularly, where such clients are eligible for legal aid: The other problem with RDM [Roundtable Dispute Management] is that in family law matters we are usually working with the party who ends up being the primary carer for the children and often that person may be eligible for legal aid and the other person is not and therefore is not prepared to spend money on what is not a known outcome. They would rather have their day in court or go to something that is a no cost FDR [Family Dispute Resolution], have their say, get their certificate if it does not work out and then off they go to court … very significant cost agents. In terms of using informal ADR processes and ADR skills, CLCs often engage in negotiations on their clients’ behalf.
While some view this as ADR, some merely see it as doing their work. : I would consider most of what we do as ADR in terms of trying to legally assist in negotiations with other parties … really everything we do is going down the path of dispute resolution but not a formal one as such … One interviewee did not consider industry dispute resolution (IDR) schemes and ombudsman services as ADR because of the decision making powers of the ombudsman and IDR schemes: …we do not think of ombudsman as ADR organisations. We see them as complaint bodies that we would write to or contact to make complaints. I do not refer to the various ombudsmans or equal opportunity commission as ADR bodies.
It’s just not the way we think of it or the OPI. This may be because we see them as regulatory bodies and also … we have an idea that they have more decision making powers or sort of persuasive powers than perhaps the DSCV would have. I think that we see DSCV and FRC as a process which people should follow but not necessarily having decision making powers. In the rare cases where everone is happy to go and accept their decision, that will be great … we see them quite differently. Another interviewee also had issues with industry schemes and tribunals being referred to as ADR because, according to the interviewee, they are not ‘disadvantaged user’ friendly.
This makes most CLC clients unable to participate effectively in their processes: … if people are too scared or reluctant to go to the tribunal … those tribunals some might describe as ADR, I’m not sure I would. For instance, VCAT requires some people to go to mediation, but my experience is if a low income person goes to mediation; that is not mediation, it is execution. For some interviewees, another criterion for measuring whether a process should be classified as ADR is the absence of power imbalance. Where a process fails to address power imbalances, it should not be classified as ADR: I think if there is power imbalance not addressed, that is not ADR … ADR needs to … deal with imbalance of power.
Interviewees pointed to the disadvantage to their clients of attending VCAT mediation. Power imbalances in regard to VCAT processes were highlighted and linked to whether VCAT provides ADR or whether the type of ADR provided is effective. One interviewee said: …if they are told they cannot have their support person or their lawyer with them because the other side do not have a lawyer. That is significant power imbalance and in my view it breaches all the fundamental tenets of good mediation and fundamentals of ADR. Recommendation 1: NADRAC should provide clarifications as to what processes constitute Alternative Dispute Resolution processes and what the features of each process are for the benefit of users of ADR.
CLCs’ awareness of ADR services and processes. Most interviewees were aware of ADR processes. However, there were differences in the level of knowledge, use and exposure to ADR services. Most CLCs are aware of the Dispute Settlement Centre of Victoria, private mediation services, industry dispute resolution schemes, family dispute resolution including Family Relationship Centres and mandatory ADR processes that are part of court processes. One interviewee who works on criminal matters was not aware of restorative justice processes: I don’t think I have participated in in any restorative …it doesn’t happen … it just doesn’t happen. No, I have not heard of it.
Another interviewee involved in intake was aware of Victoria Legal Aid Roundtable Dispute Management but not aware of most ADR service providers including the Dispute Settlement Centre of Victoria: I am not familiar with ADR. CLC clients awareness of ADR processes differ. Interviewees stated most clients would generally not request or expect to use ADR processes when they seek assistance from CLCs. Many clients often leave it to the CLC legal adviser to determine process most suitable for their legal issue. When asked whether clients request ADR processes, some interviewees responded: Generally they don’t, generally they are not really aware of those sorts of services [ADR].
Although, there has been a definite increase in people being aware of mediation with family law matters … But certainly in other areas such as neighbourhood disputes they certainly don’t know there are services such as the DSCV for example … No, I don’t think they would put it in those terms …they just want their rights they don’t know how they have them, safeguard them …they rely on us to advice them of ways to resolve it whether that be through ADR or otherwise… … there is only a relatively small proportion of people who are determined to go to court …most people see the obvious benefits of resolving things through negotiation …but they don’t come in here and say I want to take this to court or I really want to resolve this through ADR … people would say that they don’t want to go to court but they don’t say they want to go to ADR … I try to give them the spectrum.
CLCs see it as their duty to advise clients on various processes available and the cost and other benefits of ADR processes. But given that some CLC staff are unaware of ADR processes, it cannot be guaranteed that every client receives that advice. The type and quality of ADR information received is dependent on the provider of the information or advice: …. lawyers would try and explain to the people what the costs and benefits are of the systems and depending on the lawyer … some of them would be more prescriptive in how they recommend things, and I imagine that would depend on how strong they thought the case was and how capable the person was to represent themselves to go through those processes …I don’t know how they
