Bush and Folger focus much of their attention on the purpose of transformation, which is an ideological development of mediation theory and practice that they pioneered.101 They define the transformation purpose as follows:
The Transformation Story‟s premise is that the most important benefit of mediation is the transformation of the parties‟ conflict itself from a negative and destructive interaction to a positive and constructive one – which represents both a private benefit to them and a public benefit to society.102
The transformation purpose has both an individualist and collectivist focus. Attention is placed on a particular relationship for the ultimate purpose of promoting peace in the broader community.
The transformation purpose has emerged in mediation theory in a movement away from the problem-solving approaches to mediation. It developed partly in recognition of some shortcomings in the application of problem-solving approaches such as the tendency to overemphasise settlement and thereby contain the conflict interaction rather than encouraging people to explore their conflict.103 According to the transformative purpose, the dispute is a symptom of the true problem, which is the
100 See [2.5.1] and [2.5.2] above. 101
Bush & Folger (2005), above n87.
102 Bush & Folger (2005), above n87, 21. 103 Bush & Folger (2005), above n87, 1.
57 way the individuals relate to one another. The resolution of the immediate dispute may be an incidental consequence of the mediation process, but the real issue is relational.104
Transformation is focused on the relationship between the disputants rather than focusing on either their interests or their rights. Two fundamental concepts of the transformation purpose are „empowerment‟ and „recognition.‟ Empowerment is the development within individuals of a sense of their own value, strength and capacity to make decisions and to handle their own problems.105 Recognition is the
acknowledgement, understanding or empathy for the situation and views of the other disputant.106 Transformative mediation has the capacity to foster empowerment and recognition in disputants, which are qualities that will result in constructive
interaction between them.107
The purpose of transformation may be promoted by many features of mediation, including: direct disputant participation in the process, disputant control of both process and content, a flexible process that can be adapted to meet the individual needs of the disputants, cooperation between disputants and commitment to the mediation process.
Because court-connected mediation occurs within a problem-solving framework where the aim is to resolve disputes, the purpose of transformation is generally not
104 Spencer & Altobelli (2005), above n27, [5.55]. 105
Bush & Folger (2005), above n87, 22.
106 Bush & Folger (2005), above n87, 22. 107 Bush & Folger (2005), above n87, 21.
58
prioritised in court-connected mediation.108 The transformation model of mediation is rarely practised in the court-connected context. On the one hand, Hensler has opposed transformative court-connected mediation on the basis that the goals of transformation are not appropriate for a public justice system.109 She believes that these goals are private goals that can be pursued outside the civil justice system.110 Litigants are presumed to be seeking finalisation rather than enhanced
communication.111 This assumes that the private goals of parties ought not be pursued in the public-private context of court-connected processes.
On the other hand, Bush has challenged those who exclude transformation from the spectrum of processes that might be practised in a court-connected context:112
It is certainly true, there are cases where people don‟t want to have somebody assist them in approaching conflict as a sort of change process. If so, then that shouldn‟t happen; that should be clearly a choice of the parties. On the other hand, if this kind of approach is not even available, because institutionalization has made it difficult or impossible for this to occur in mediation, then that‟s a limitation of choice of a different kind.113
In 1998, Franz noted trends in relationship building management techniques and posited that it was becoming increasingly possible to imagine public sponsorship of process-oriented approaches to mediation such as transformative mediation.114 A prominent example of such public sponsorship is the United States Postal Service‟s
108 See also NADRAC (2003), above n76, 9. Transformative mediation is not defined in this
document, and falls outside both of NADRAC‟s definitions of mediation. Sourdin (2005), above n2, 29.
109 Hensler (2002), above n43, 98. 110 Hensler (2002), above n43, 98. 111
Peter N Thompson, 'Enforcing Rights Generated in Court-Connected Mediation - Tension Between the Aspirations of a Private Facilitative Process and the Reality of Public Adversarial Justice' (2004) 38 Ohio State Journal on Dispute Resolution 509, 568.
112 Baruch Bush in James Alfini et al (1994), above n23, 331. 113
Baruch Bush in James Alfini et al (1994), above n23, 331.
114 Patricia L. Franz, „Habits of a Highly Effective Transformative Mediation Program‟ (1998) 13(3)
59 mediation programme for the resolution of employee disputes, which adopts a
transformative approach.115 Franz cautions that in implementing a transformative approach in the context of a court, the potential impacts of both the adversarial culture of the court system and the outcomes-based orientation of current mediation practices would need careful consideration.116
Although there is theoretical potential for transformative approaches to mediation to be adopted in a court-connected programme, there are significant obstacles that would need to be overcome before this could be done effectively.
3.2.4 The purposes of court-connected mediation
Against the background of the theoretical purposes that may be promoted in
mediation, the instrumental purposes for which mediation has been adopted by courts should be acknowledged. Commentators have suggested that mediation was adopted by courts to solve its problems of delay rather than to embrace mediation ideology.117 For example, McEwen and Wissler note that:
[I]t is not at all clear that „mediation ideology‟ has driven the development of most civil, court-based mediation programmes dealing with the vast majority of money-damages cases. Indeed, much more pragmatic concerns – the inefficiencies and slowness of litigation and the negotiation that occurs in its midst – are likely to be at work.118
115
Lisa B Bingham, „Mediation at Work: Transforming Workplace Conflict at the United States Postal Service‟ Chapter 5 in Jonathon D Breul and Nicole Willenz Gardner, Human Capital 2004
(Rowman and Littlefield Publishers, Inc., 2004).
116 Franz (1998), above n114, 1041. 117
Frank E. A. Sander, „The Obsession with Settlement Rates‟ (1995) Negotiation Journal 329; The Hon Justice James Spigelman, „Just, Quick and Cheap – A Standard of Civil Justice‟ (Paper presented at Opening of Law Term, Parliament House, Sydney, 31 January 2000); Welsh and Coleman (2002), above n23.
118
Craig A McEwen and Roselle L Wissler, „Finding Out If It Is True: Comparing Mediation and Negotiation Through Research‟ (2002) University of Missouri Journal of Dispute Resolution 131, 139.
60
This comment indicates that the primary purpose of court-connected mediation, from the view of courts at least, may not be based upon any of the mediation purposes explored above. Instead, the purpose of court-connected mediation may be to solve practical problems faced by the courts. In order to investigate this further, it is useful to conduct an analysis of the institutional objectives of court-connected mediation.
The analysis starts with a fundamental question: „what is the purpose of court- connected mediation?‟ Unfortunately, the goals of court-connected mediation programmes in Australia are rarely articulated.119 It has been suggested that the enthusiasm of court administrators for mediation was founded primarily on a perception of mediation as a case management tool120 rather than on an interest in incorporating any of the mediation values identified above into the formal justice system.121
The institutional goal of efficiency
In the 1980s and 1990s, courts generally were widely criticised for being inaccessible, expensive and plagued by delay.122 The adversary nature of the
119 Kathy Mack, Court Referral to ADR: Criteria and Research (National ADR Advisory Council and
Australian Institute of Judicial Administration, 2003) 17.
120 Astor & Chinkin (2002), above n17, 245-246; Jill Hunter, Camille Cameron and Terese Henning,
Litigation I: Civil Procedure (7th ed, 2005) [2.17]; Martin (1996), above n23, 66.
121
Nadja Alexander, 'Mediation on trial: ten verdicts on court-related ADR' (2004) 22(1) Law in Context 8, 17.
122 ALRC (2000), above n42; Access to Justice Advisory Committee (1994), above n51; Attorney-
General of Ontario, 'The Modern Civil Justice System: An Overview Summary of the First Report' (Ontario Ministry of the Attorney General, 1995); Canadian Bar Association, 'Report of the Canadian Bar Association Task Force on Civil Systems of Justice' (Canadian Bar Association, 1996); Woolf (1996), above n42; Deborah R Hensler, 'Our Courts, Ourselves: How the Alternative Dispute Resolution Movement is Re-Shaping Our Legal System' (2003) 108 Penn St. L. Rev. 165, 168; Brian Withers, 'The Future of Adversarial Justice' (Paper presented at the 17th AIJA Annual Conference, Adelaide, 6-8 August 1999) 1; Sir Anthony Mason, 'The Future of Adversarial Justice' (Paper presented at the 17th AIJA Annual Conference, Adelaide, 6-8 August 1999) 1. See also Chief Justice Cox, 'Report of the Chief Justice of the Supreme Court of Tasmania: Annual Report 1999/2000' (Supreme Court of Tasmania, 2000) „The time taken to finalise civil matters is of increasing concern to the Court. With the need to devote increasingly large proportions of Court
61 litigation system was seen to be problematic because it exacerbated these
problems.123 The negative consequences of delay include higher financial and emotional costs for disputants, loss of evidence or legal remedies, an increased likelihood of professional negligence and decreased confidence in the legal system.124
Court-connected mediation has been promoted and supported on the basis that it is cheaper, quicker, more readily accessible and less complex than judicial
adjudication.125 Mediation has been promoted as offering informality and direct disputant participation, qualities which theoretically improve accessibility. It also provides an opportunity for cooperation.
One of the big efficiency benefits of mediation is that it has enabled courts to
facilitate early settlement of litigated matters. Before court-connected mediation was introduced, the overwhelming majority of civil claims were settled prior to trial.126 However, they were often settled literally at the door of the court, on the day of trial. This created problems for courts because judges were left with an empty docket, as matters were settled without there being time to reallocate the judge‟s time to another case. Mediation has enabled courts to reduce waiting lists for trial, because it has
time and resources to the resolution of criminal matters, the time taken to finalise civil matters is increasing.‟
123 Although the Australian legal system is a blend of adversarial and non-adversarial elements, it has
more adversarial than inquisitorial features and is therefore described as an adversary legal system. See Tania Sourdin, 'Law and the Cultural Shift: looking beyond europe for litigation reform ideas' (1996) (70) Reform 25, 44; Tania Sourdin, 'Beyond the adversarial system of litigation' (1997) (53)
Refresher 22, 22.
124 Canadian Bar Association (1996), above n122, 15. 125 Mahony (2000), above n23.
126
Marc Galantar, „Reading the Landscape of Disputes: What We Know and Don‟t Know (And Think We Know) About Our Allegedly Contentious and Litigious Society‟ (1983) 31 UCLA Law Reviw 4, 26; McEwen and Wissler (2002), above n118.
62
facilitated earlier settlements in some cases.127 By introducing court-connected mediation, often mandatory in nature, courts have been able to encourage settlement to occur earlier in the litigation process. Rather than settling cases that would
otherwise actually be tried, mediation has created a forum for settlement of cases that would otherwise have been settled through processes such as unassisted lawyer negotiation. The cases that are bound for settlement tend to be recognised before a trial date is allocated, because mediation is attempted. Therefore, mediation may be a stimulus for earlier negotiation between lawyers than would otherwise occur.
Another efficiency benefit that court-connected mediation has achieved for courts, is that it may streamline the remaining legal process even for those cases that do not settle at mediation.128 For example, the areas of dispute may be more clearly identified, which enables a narrowing of the issues that need to be argued at trial. Furthermore, the sharing of information that occurs at mediation may clarify the legal arguments that will be made between the parties and the evidence that will be necessary to support those arguments. These factors may decrease the amount of time required to try a case. Another benefit of clarifying the legal cases is the
127
The Hon Justice John Hansen, „Facing New Challenges‟ (Paper delivered at 17th AIJA Annual Conference, Adelaide, 6-8 August 1999); Robert G Hann et al, „Evaluation of the Ontario
Mandatory Mediation Program (Rule 24.1). Final Report – The First 23 Months (Robert Hann and Associates Limited/Ontario Ministry of the Attorney-General, 2001). Cf. mixed findings in James S Kakalik et al, „Just, Speedy and Inexpensive? An Evaluation of Judicial Case Management Under the Civil Justice Reform Act‟ (MR-800-ICJ, RAND, 1996). See also Roselle L. Wissler, „The effectiveness of Court-connected Dispute Resolution in Civil Cases‟ (2004) 22 (1-2) Conflict Resolution Quarterly 55; Mack (2003), above n119, regarding mixed empirical reports regarding the impact on timing of settlement.
128 K Saville-Smith and R Fraser, „Alternative Dispute Resolution: General Civil Cases‟ (New
Zealand Ministry of Justice, 2004) Part 6; Keith Schildt, James Alfini, Patricia Johnson, „Major Case Mediation Pilot Program: 17th Judicial Circuit of Illinois‟ (College of Law, Northern Illinois University, 1994); Hann and Baar et al (2001), above n120, Chapter 5 [5.3-5.4]; MacFarlane (2002), above n64, 266.
63 exposure of parties to a „reality check‟ of the weaknesses in their case, which may encourage settlement.129
One of the issues in court-connected mediation is that if there is an overemphasis on efficiency, without reference to other aspects of mediation, there is a danger that the richness and the variation that could have been present in mediation will be lost.130 The goal of efficiency impacts on the nature of court-connected mediation by creating pressure to find „quick‟ settlements and by encouraging the discussion of a narrow, limited range of issues.131 In other words, it encourages a departure from the core features of responsiveness, self-determination and cooperation towards an emphasis on a narrow scope, reliance upon legal advisors and distributive bargaining practices.
Potential purposes of court-connected mediation
There is a choice to be made by programme providers about the extent to which the potential benefits of mediation are offered in court-connected mediation
programmes. A clear definition of purpose at a programme level would clarify the aim of the mediation process.
To facilitate decision making about what courts might offer through court-connected mediation, research about what litigants value in dispute resolution provides an important guide:
129
Macfarlane (2002), above n71, 265.
130 Michele Herman in Alfini et al (1994), above n23, 313.
131 Wayne D Brazil, „Court ADR 25 Years After Pound: Have We Found A Better Way?‟ (2002) 18
Ohio State Journal on Dispute Resolution 93. See also Bush & Folger (2005), above n87, 19; Sander (1995), above n117; Welsh (2001), above n36; Ralph Peebles, Catherine Harris and Thomas Metzloff, „Following the Script: An Empirical Analysis of Court-Ordered Mediation of Medical Malpractice Cases‟ (2007) J. Disp. Resol. 101.
64
While settlement is often important to litigants in dispute, research suggests that this is not what is most important to litigants and other participants in mediation. What is most important is the quality of the interaction at the mediation, including being respected, being understood, being able to face the other person and talk or to have questions addressed, and the responsiveness of the other person(s). What may also be important to litigants in mediation is the way their attorneys interact with each other and their appropriate responsiveness to the situation.132
Research findings that contrast lawyers‟ and parties‟ perspectives of the purpose of mediation include Relis‟ interviews of participants in medical injury disputes in Toronto.133
She found that for both plaintiffs and physician defendants, the purpose of mediation was to facilitate communication between the disputants about the
circumstances around the dispute; making mediation a very personal encounter.134
This perspective contrasted with lawyers (both plaintiff and defendant), who saw mediation as an opportunity for strategic communication to lower plaintiffs‟ expectations about monetary outcomes.135
Defendant lawyers discouraged physician attendance at mediation because the dispute was only about money and the insurer, not the physician, could instruct about money.136
Researchers have also identified a fundamental distinction between the way that legal actors and disputants evaluate mediation.137
There is a tendency for legal actors to
132
Senft and Savage (2003-2004), above n46, 335 citing Robert A Baruch Bush and Sally Ganong Pope, „Transformative Mediation: New Dimensions in Practice, Theory, and Research‟ (2002) 3
Pepp. Disp. Resol. L.J. 1.
133 Relis (2009), above n72. 134
Relis (2009), above n72, 106, 109, 194-195.
135 Relis (2009), above n72, 194-195. 136 Relis (2009), above n72, 106.
137 Judith Resnik, „Mediating Preferences: Litigant Preferences for Process and Judicial Preferences
for Settlement‟ (2002) Journal of Dispute Resolution 155; Brad Reich, „Attorney v Client: Creating a Mechanism to Address Competing Process Interests in Lawyer-Driven Mediation‟ (2002) 2 Southern Illinois University Law Journal 183; Nancy Welsh, „Stepping Back Through the
65 measure the success of mediation primarily on whether or not a settlement was reached and the nature of the outcome.138 By contrast, research has consistently
shown that disputants measure their satisfaction with mediation (along with all dispute resolution processes) according to their experience of the process.139 The
opportunity to participate directly is a significant part of disputants‟ experience of process and is discussed further at [4.2.2].
Research findings about disputants‟ aims in mediation highlight that the narrow, adversarial style of many court-connected mediation programmes may not be satisfying the more important interests for litigants.
An example of a mature court-connected mediation programme that has maintained a commitment to mediation benefits other than efficiency is the Saskatchewan Queen‟s Bench programme in Canada.140 This programme was introduced in a court that was not experiencing delay. The opportunity for the parties to have a face to face meeting and the ability to adapt the mediation process on a case by case basis are emphasised in this programme.141
Looking Glass: Real Conversations with Real Disputants About Institutionalized Mediation and Its Value‟ (2004) 38 Ohio State Journal on Dispute Resolution 573.
138 Resnik (2002), above n137; Reich (2002), above n137; Welsh (2004), above n 137. 139
Boulle (2005), above n6, 597-598; Carol Bartlett, „Mediation in the Spring Offensive‟ (1993) Law Institute Journal 232; Marie Delaney and Ted Wright, Plaintiff's Satisfaction with Dispute Resolution Processes: Trial, Arbitration, Pre-Trial Conference and Mediation (1997); Jill Howieson, 'Perceptions of Procedural Justice and Legitimacy in Local Court Mediation' (2002) 9(2) Murdoch University Electronic Journal of Law
<http://www.murdoch.edu.au/elaw/issues/v9n2/howieson92_text.html>. For further references see Boulle (2005), above n6, Ch 16 his n13 and 15. Because of such findings, many programme evaluations collect data about levels of disputant satisfaction with the mediation process. A recent example is Sourdin‟s examination of mediation in the Supreme and County Courts of Victoria. She found that 65% of plaintiffs would have liked to participate more and only 35% considered that they had control during the process. Sourdin (2009), above n72.
140
Julie MacFarlane and Michaela Keet, „Civil Justice Reform and Mandatory, Civil Mediation in Saskatchewan: Lessons from a Maturing Program‟ (2005) 42 Alberta Law Review 677.
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Despite the range of potential benefits of mediation, the way that the success of