Chapter 4 Improving Alternative Dispute Resolution
8. DaTa aND ReseaRCh, INCLUDINg meDIaTORs’ RePORTs
8.1 The LaCk Of emPIRICaL ReseaRCh aND aCCURaTe DaTa
There is a lack of empirical data on the effectiveness of court-ordered ADR in Victoria, including its cost effectiveness. There is a need for more research to improve knowledge of the role of mediation in Victoria and, more specifically, to obtain more data regarding how effective ADR is in relation to:
narrowing issues and settling disputes •
bringing about an earlier resolution of disputes •
reducing the length and cost of proceedings •
assisting the courts to manage their caseloads •
providing fair outcomes. •
Measuring the outcomes of ADR in Victoria is important for identifying whether ADR programs are meeting their aims and fulfilling their potential. The commission proposes that the Civil Justice Council should conduct an ongoing review of ADR processes in Victorian courts.
715 Submission ED1 30 (Magistrates’ Court of Victoria and Dispute Settlement Centre of Victoria). The court and the settlement centre also felt that penalty provisions attracting costs for failure to comply with court rules were a major part of the powers that support the effectiveness of mediation conducted ‘in the shadow of the court’. They considered that additional enforcement provisions were needed. They proposed that the Dispute Settlement Centre, subject to approval and funding, should undertake a pilot program to provide mediation services at the Magistrates’ Court for defended civil proceedings for amounts up to $10 000. The commission notes that Broadmeadows Magistrates’ Court is currently piloting such a program—see Magistrates’ Court of Victoria Practice
Direction No. 6 of 2007 (2007).
716 Mack (2003) above n 13, 21. 717 Civil Justice Council (UK), Court-based
Mediation: A Preliminary Analysis of the Small Claims Mediation Scheme at Exeter County Court, <www.
civiljusticecouncil.gov.uk/publications/ mediation_0304.htm> at 21 January 2008.
718 See, for example, NADRAC (2006) above n 1; Mack (2003) above n 13. See also NADRAC’s website: <www.nadrac.gov.au/agd/WWW/ disputeresolutionhome.nsf/Page/ Publications> at 24 April 2008. 719 Crown Counsel (2007) above n 41. 720 Tyler and Bornstein (2006) above n
671, 48.
Data collection regarding ADR is also important. The courts have been using mediation reports for some time. The problem is that the reports are not always filed with the court, even where the court has ordered that the mediator or parties report to the court. Performance outcomes of ADR such as participation and settlement rates are not difficult to measure. However, accurate data are required. The requirement to file mediation reports will assist the courts in gathering accurate data regarding mediation. Performance outcomes can then be measured. Such data would also be of use in terms of identifying potential improvements and increased efficiencies for ADR providers and the courts.
The reports should also provide an assessment of the person conducting the ADR process. This should assist the courts to monitor and assess dispute resolution practitioners to maintain quality ADR services. Quality ADR services are important to ensure participants have confidence in the ADR service provided and in court processes.
8.2 ReseaRCh TO DaTe
There is a ‘substantial amount of valuable research, mainly in the United States, involving court-based ADR programs, especially family mediation and mediation in general civil cases’.716 There is also valuable research coming out of the
United Kingdom as a result of evaluations by the Civil Justice Council.717 There are various evaluations of ADR and court-
based ADR programs in Australia, particularly by NADRAC.718
In Victoria, there have been various reviews of ADR and the courts, including:
a review, commissioned by the Department •
of Justice in 1996, that assessed the cost and effectiveness of courts and tribunals for Victorian businesses
Going to Court
• , a review by Professor Sallmann and Ted Wright of the civil justice system for the Department of Justice in 2000
the Department of Justice: ADR reports and surveys •
referred to in the introduction to this chapter the Victorian Crown Counsel review of the Office •
of Master and Costs Office in the Supreme Court, which included an assessment of master mediation719
the evaluation of the intervention order mediation •
program in the Magistrates’ Court,720 a review
undertaken in the criminal justice system the present Victorian Parliamentary Law Reform •
Committee’s review (also referred to in the introduction to this chapter)
707 LEADR is an Australasian, non-profit organisation formed to promote consensual dispute resolution. LEADR’s services include access to panels of independent mediators, and facilitation of mediations and conciliations. LEADR also provides ADR training including training in mediation, negotiation, facilitation and conciliation: LEADR, <www.leadr.com.au/training> at 28 May 2007.
708 The Dispute Settlement Centre of Victoria (DSCV) offers mediation services and deals with a wide range of disputes: Dispute Settlement Centre of Victoria, Information Kit
2006, <www.justice.vic.gov.au/ wps/wcm/connect/DOJ+Internet/ Home/The+Justice+System/Disputes/ JUSTICE+-+Dispute+Settlement+Centr e+of+Victoria+Information+Kit+(PDF)> at 20 April 2007.
709 The Neighbourhood Justice Centre deals with a range of civil and criminal cases arising in the City of Yarra. Mediation at the centre is available to residents, government departments, agencies and community organisations within the Yarra municipality. These services are provided by the DSCV: Department of Justice, <www.justice.vic.gov.au/ wps/wcm/connect/DOJ+Internet/ Home/The+Justice+System/ Neighbourhood+Justice> at 11 May 2007.
710 For information on the Moorabbin Justice Centre see the Deputy Premier and Attorney-General, ‘Hulls launches $28.2 million Justice Centre in Moorabbin’ (Press Release, 15 November 2007).
711 The Victorian Small Business Commissioner (VSMC) offers preliminary assistance in dispute resolution. VSBC staff assist in resolving matters before submitting to formal mediation: Office of Small Business Commissioner <www.sbc.vic. gov.au/content.asp?subPageID=31> at 23 April 2007.
712 See Recommendation 28 on education of the judiciary and court staff. 713 Submissions ED1 16 (Telstra), ED1
17 (Australian Corporate Lawyers Association), ED1 9 (Federation of Community Legal Centres), ED1 31 (Law Institute of Victoria), ED1 30 (Magistrates’ Court of Victoria and Dispute Settlement Centre of Victoria), ED1 24 (Victorian Bar), ED1 26 (Springvale Monash Legal Centre), ED1 25 (Victoria Legal Aid).
714 Submission ED1 20 (Public Interest Law Clearing House).
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the current examination by NADRAC of the development of performance measurements •
for ADR721
the Law Council’s current collation of information and statistics from the different •
Australian jurisdictions regarding mediation.722
The Department of Justice has recently undertaken considerable research, including empirical research, regarding ADR throughout Victoria.723 One of the current projects is a review of the role of mediation
in the Victorian Supreme and County Courts. The project will assess the effectiveness of mediation in settling disputes, reducing the length and cost of proceedings and assisting the courts to manage their caseloads.724 The commission considers that a similar review in the Magistrates’ Court would be
beneficial.
8.3 The effeCTIVeNess Of aDR
Despite the research identified above, there is little empirical data on the effectiveness of court- ordered mediation in Victoria. NADRAC notes that there are many possible aspects or dimensions in determining whether an ADR process could be called effective or successful. It suggests that the starting point for any discussion must depend on the goal or goals the referral to ADR seeks to achieve, so that outcomes can be measured against those goals. Astor and Chinkin provide a list of goals which a court-connected ADR referral might include— for example, reducing delay, clearing lists, reducing the backlogs, assisting in management of cases, reducing cost (to parties, courts, government, taxpayers).725
NADRAC notes that:
In spite of the potential for more sophisticated measures of success, the actual measures used in evaluative research tend to be quite limited. The most frequently used are settlement rates [and] satisfaction (both for its own sake and as a proxy for quality of outcome).726
This limited choice of outcome reflects, in part, the difficulty of empirical research in this area, including the difficulty of undertaking research over long periods of time. This difficulty is equally true of research into civil litigation generally, which has not generally been subjected to the same degree of evaluation.727
NADRAC notes that there are no agreed standards for measuring the outcomes of ADR in civil disputes. Without agreed performance measurements and data assessing the outcomes of ADR, it is difficult to assess the performance of ADR providers and the outcomes for participants in the civil justice system.728
Mack has suggested that ‘the development of nationally agreed conventions for measuring and reporting ADR referrals and outcomes should become an urgent part of the larger task of civil justice statistical measurement’.729 Mack also notes that there is very little empirical research that ‘investigates
whether satisfaction or settlement is affected by whether the ADR is provided by a judge, court staff or an outside third party, whether voluntary or paid’.730
The Victorian Parliamentary Law Reform Committee in its Discussion Paper discussed in detail some of the common performance indicators used to measure the success of ADR, including agreement rate and quality, participant satisfaction, participant empowerment and time and cost savings.731
The committee identified surveys, evaluations and data regarding these performance indicators. It also identified areas where there is limited research and data, including into why some cases reach agreement through mediation or other ADR processes while others do not,732 and the extent to which
the use of ADR processes reduces the time taken to resolve civil disputes.733
8.4 The COsT effeCTIVeNess Of aDR
Based on the submissions and consultations to this review, participants view mediation favourably and perceive it to have potential cost savings. There is evidence that the general community recognises potential cost savings as a feature of ADR services.734 However, another view is that ADR can create an
extra step in the proceeding and if the matter does not settle, parties incur additional costs. The Law Reform Committee’s Discussion Paper identifies some of the issues surrounding the cost savings of ADR, including that:
The earlier a dispute is settled, the greater the cost savings will be for the litigants and the •
courts (and government).
Most cases settle rather than progress to a hearing stage, therefore the cost savings are •
not necessarily savings associated with avoiding a hearing but rather savings resulting from an earlier settlement.
ADR will generally only be cheaper for the individual if a lasting agreement is reached. •
Even where ADR is unsuccessful, the process may narrow the issues in dispute, reducing •
the time taken to resolve the dispute at a hearing, resulting in cost and time savings for litigants and the courts.735
ADR processes have the potential to save costs for litigants, courts and government. However, there is little data or research in Victoria regarding the cost effectiveness of ADR. There is a need for empirical research regarding the cost effectiveness of court-ordered mediation. The Department of Justice is currently reviewing the cost effectiveness of mediation in the Victorian Supreme and County Courts. A similar review would be of benefit in the Magistrates’ Court.
8.5 DaTa, INCLUDINg meDIaTORs’ RePORTs
The courts have some data on mediation and other forms of ADR.736 As discussed above, if mediators’
reports are filed with the court, the court will have access to accurate data on ADR.
8.5.1 Position in Victoria
In the Magistrates’ Court, pursuant to rule 22A.07, within seven days of a mediation having been completed, the mediator must file a mediation report in a specified form737 and provide a copy of the
report to each party who attended the mediation. Under the Supreme and County Court Rules:
The mediator may and shall if so ordered report to the Court whether the mediation is finished.738
8.5.2 Other models
New South Wales
The New South Wales provisions are similar to the Victorian Magistrates’ Court approach. Section 20.7 of the Civil Procedure Act 2005 (NSW) provides:
Within 7 days after the conclusion of the mediation, the mediator must advise the court of the fact that the mediation has been concluded.
A Practice Note of the NSW Supreme Court requires the following information from the plaintiff following mediation:
Evaluation of referral of proceedings to mediation and entry of any consent orders
Within 14 days after the conclusion of the mediation, the plaintiff in writing informs the Principal Registrar of the following (‘Joint Protocol Evaluation Information’):
the name and file number of the proceedings; •
the name of the mediator; •
the date(s) of the mediation; •
the number of hours occupied by the mediation; •
whether the parties were represented at the mediation by solicitors; •
whether the parties were represented at the mediation by counsel; •
whether the parties agreed to settle, or partly settle, the proceedings or whether no •
resolution of any issues was achieved;
721 NADRAC, Submission on Federal
Civil Justice System Strategy Paper,
(2004) 4 <www.nadrac.gov.au/ agd/www/Disputeresolutionhome. nsf/HeadingPagesDisplay/ Publications?OpenDocument> at 13 March 2008.
722 Consultation with the Law Council of Australia (15 August 2007). 723 Consultation with the Department of
Justice (15 August 2007). 724 Parliament of Victoria, Law Reform
Committee (2007) above n 702, 59. 725 Astor and Chinkin (2002) above n 45,
262. 726 Mack (2003) above n 13, 18. 727 Ibid 18–19. 728 NADRAC (2004) above n 14, 12-13. 729 Mack (2003) above n 13, 87. 730 Ibid 5.
731 Parliament of Victoria, Law Reform Committee (2007) above n 702, 54–7. 732 Ibid 54.
733 Ibid 57.
734 Ipsos Australia (2007) above n 40, 20. 735 Parliament of Victoria, Law Refom
Commitee (2007) above n 702, 58. 736 See discussion in the introduction to
this chapter. 737 Form 22AA.
738 Supreme Court (General Civil
Procedure) Rules 2005 r 50.07(4), County Court Rules of Procedure in Civil Proceedings 1999 r 50.07(5).
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to the extent that any terms of settlement are not confidential to the parties, the •
terms of settlement; and
if the parties agreed to the Court making orders, a signed consent order in a form •
suitable for entry by the Registry.
On receipt of the Joint Protocol Evaluation Information, the Principal Registrar will forward a copy of that information to the relevant nominating entity.739
California
The California Code of Civil Procedure provides, with respect to referees, that:
The Judicial Council shall, by rule, collect information on the use of these references and the reference fees charged to litigants, and shall report thereon to the Legislature.740
Netherlands
In the discussion above there is reference to the monitoring system that has been developed and implemented in the court administration.741
8.5.3 Discussion
At present, mediation reports are not always filed with the court, even in circumstances where the court has ordered that the mediator report to the court. The courts collect some data about the number of mediations conducted.742 However, if mediation reports are not always filed, it is difficult
for the courts to obtain accurate data and information about mediation. If all of the parties who attended mediation were required to file mediation reports with the court within a specified period, say seven days, and to provide a copy of the report to each party who attended the mediation, it would assist the courts in gathering accurate data about mediation. Such data could then be used to measure participation and settlement rates. The benefit of this is that the courts would then be in a position to assess the overall effectiveness of mediation. Such changes will also be of benefit because they will harmonise court rules and procedures. Accurate data would be useful for comparing data across jurisdictions.
See also the discussion in Chapter 5 regarding the need for additional data collection in the courts and for court forms and documents, including mediator’s reports, to be designed to facilitate the collection of data as a by-product of administrative processes.
8.6 sUBmIssIONs
The Law Institute agreed with the commission’s proposal in Exposure Draft 1 that there was insufficient information or data on the effectiveness of court-ordered mediation in Victoria. The institute also supported the commission’s draft recommendation that a review of the Magistrates’ Court mediation program would be beneficial. Its submission agreed that parties should be required to submit reports at the conclusion of any ADR process as ‘such a report could provide a useful evaluation of both the mediation process and mediator’.743 The Law Institute also considered that if
parties were required to submit these reports, it was important that courts release ongoing summaries and analysis of the information, which would benefit all participants in the process.744
Telstra and the Australian Corporate Lawyers Association suggested the gathering of empirical data should be voluntary. They suggested that there might be good reasons for parties wishing to maintain confidentiality over the fact of any dispute and its resolution. They considered the only issue that should be reported is the resolution or lack of resolution of the dispute. This is done in any event when orders are made either disposing of a proceeding or seeking orders for the further conduct of the proceeding.745
The Magistrates’ Court and Dispute Settlement Centre suggested that the existing mediator’s report in the Magistrates’ Court could be supplemented by the parties indicating whether the other party had made a genuine attempt to resolve the matter (as shown by the state of preparedness), with cost implications.746
The Mental Health Legal Centre suggested that there should be a system whereby anonymous information about settlements could be made publicly available, for example, on a database. Their view was that: ‘The benefit would be to provide realistic guidance to potential litigants and to facilitate earlier resolution.’747
8.7 CONCLUsIONs aND ReCOmmeNDaTIONs
There is a need for more empirical research regarding the effectiveness of court-ordered ADR, particularly the cost effectiveness. Further empirical research will provide valuable input into understanding the benefits of ADR for participants. Once-off reviews such as those identified above have contributed significantly to the knowledge base regarding ADR in Victoria. However, further research will enable the courts to better assess the outcomes for participants in the civil justice system and evaluate the performance of ADR programs.
The Department of Justice’s Civil Law Policy Unit is currently considering the overall effectiveness and cost effectiveness of mediation in the County and Supreme Courts. A review of the effectiveness of the Victorian Magistrates’ Court pre-hearing conference and mediation service should also be carried out. This could be a responsibility of the Civil Justice Council.
The commission considers that parties should be required to file a mediation report with court at the conclusion of any ADR process. Such reports should also provide an assessment of the person conducting the ADR process. This will assist the courts in gathering accurate data about mediation. The courts will then be in a better position to measure the performance of mediation, including participation and settlement rates. This information could also be used to identify potential improvements and increased efficiencies in the courts. Including a requirement that the parties assess the ADR practitioner in the report filed with the court will allow the court to monitor the quality of the ADR practitioners providing services.
The proposed Civil Justice Council should be responsible for conducting and coordinating empirical research into the role of ADR and the effectiveness of ADR. This will be particularly important if our other ADR recommendations, including expanding the ADR options available, introducing more court- conducted mediation and compulsory referral to special referees are implemented.