Working Group 3 - Alternatives to Traditional Approaches in Civil Law
Alternative dispute resolution
Participants in the working group generally saw the alternative dispute resolution (ADR) mechanisms employed in the court system to be desirable additions to conventional court litigation—they provide the means by which civil litigants may resolve their disputes while avoiding the expense, time and emotional strain associated with formal contested hearings. They thought that the use of mediation in the mainstream courts (that is, the Local, District and Supreme Courts) was not significant. In particular, the Supreme Court appeared merely to pay ‘lip-service’ to the use of mediation and neutral evaluation processes that are prescribed by legislative enactment, though these are available for the majority of civil cases. Indeed, while the Court enjoys the power to refer cases to mediation or neutral evaluation with or without the consent of the parties where it is considered appropriate, participants suggested that the complexity of many civil cases or the unwillingness of the litigants to participate in ADR placed pressure upon the Court to proceed to contested hearings.
Participants raised a systemic problem with the ADR mechanisms operating in courts and tribunals, in that sessions are often conducted without the involvement of an independent third party, such as a mediator or conciliator. In many instances courts and tribunals recommend to the parties that they discuss their dispute on their own in an attempt to reach an agreement which the court or tribunal will formalise through consent orders:
In the civil debt area, in the cities (it doesn’t happen so much in outside courts), there is the situation where the debtor will come to the court, the creditor is there, and the magistrate’s idea of mediation is, ‘would you like to toddle off out there in the corridor and have a chat and come back’.
As one participant remarked, such a process amounts to negotiation, and certainly cannot be described as mediation. Others suspected that the prominent reason for the lack of court or tribunal appointed mediators or conciliators is the insufficiency of resources, bearing in mind the expense of providing an ADR facilitator for each matter. However, they also expressed a fear that some courts and tribunals, or their individual members, were not committed to ADR processes as a permanent feature of civil litigation, or at least did not believe that they were appropriate for many of the cases before them.
Participants saw the primary concern of the failure to provide ADR facilitators for every case as the possibility of a ‘power imbalance’ between the parties being manifested during these negotiation sessions. This concern was especially pertinent where an individual litigant was in dispute with a corporation or government agency, whose financial superiority and expertise might be used as tools to exert influence. In the more structured ADR jurisdictions the parties may be subject to considerable pressure to look cooperative, which may in itself lead to unreasonable or unfair agreements. An independent third party appointed by the court or tribunal can serve to restrict the use of undue influence, bullying tactics or the inappropriate use of language by one party against the other, and generally ensure that any power imbalance is minimised during the negotiations.
Participants reported that in some jurisdictions mediation staff are appointed on an ad hoc basis, but in others, such as the Consumer, Trader and Tenancy Tribunal, there are salaried and trained conciliators or mediators. Another method for managing power imbalances between parties during negotiations, used at the Downing Centre Local Court for civil debt matters, is to have a financial counsellor sit in the place of an officer of the court and be available at the direction of the registrar to identify and provide support to parties that might require assistance.
Among the benefits of formal ADR mechanisms, participants noted the speed with which disputes are resolved because of time saved in avoiding contested hearings. However, they did not think that all ADR processes offer equally speedy resolutions:
One of the problems with mediation, particularly in discrimination cases, is that cases get bogged down forever, and then you can go to file in court and have more mediation there; so, the Anti-Discrimination Board is a massive problem because it has huge delays. There is a long delay before you get involved in conciliation and then the conciliation drags on. It can drag on for a long time. People have a wrong perception of what mediation is: they are waiting for a decision from the ADB or HREOC and they never get it because these bodies do not make decisions—it is really all about agreeing. In that process you need people who can advise the parties about what is the appropriate mechanism or settlement. What happens is that you have this long process, then you file in court or tribunal, and then you have another long delay there.
The effectiveness of ADR mechanisms is largely determined by the interest and willingness of the applicants or complainants to participate in processes that may involve significant time and effort on their part. One participant recounted an instance in which a case before the Human Rights and Equal Opportunity Commission (HREOC) floundered as a result of a combination of factors that lead the complainants to lose interest in pursuing their case:
There was a matter relating to the Children (Protection and Parental Responsibility) Act 1997, which is a particular piece of legislation that was brought in, and it is really strange in that it has operational areas declared in certain parts of NSW, which happen to be areas where there is a high Aboriginal population—Orange, Moree, Ballina and Canowindra. In those operational areas the police have authority to take kids home if they are 14 or under, without any evidence that they are about to commit a crime. They make some sort of assessment that the child is at risk or about to commit a crime, and they can remove the child and take them home. There was a study showing that in the first 3 months, out of 95 kids taken home 91 were Aboriginal. We began a complaint in HREOC, a representative complaint, arguing that the operation of the Act was discriminatory in effect even though the provisions perhaps weren’t discriminatory. The problem was that HREOC took a long time to work out they had jurisdiction. About one and a half years later they decided they could investigate it, and by that time the Aboriginal clients were pretty sick of the whole thing, and then the police didn’t cooperate in terms of evidence. It was compounded by Legal Aaid: there was a long tussle about whether we would get legal aid to run proceedings, and in the end the client lost contact with us and we couldn’t provide the extra financial information legal aid needed, so we didn’t get the grant of legal aid, and we went to the Federal Court without an indemnity. It was a disaster. The key point being how delay affects client expectation or willingness.
There appears to be a need for research to be conducted on the question of the sustainability of ADR mechanisms, particularly in the case of court referral arrangements. Such research would investigate matters including the length of time it takes to have disputes resolved, the extent to which parties comply with the agreements and orders made, the commitment by the courts and the lack of mediators and conciliators.
The problem of costs
Participants said that one of the most significant barriers to access to justice in relation to the courts system is the issue of costs. This is in two senses: first, there are costs associated with running or defending an action in the courts; second, in most court jurisdictions there is the possibility of the unsuccessful litigant being ordered to pay the opposing party’s legal costs.
The problem of costs can be seen in two ways. On the one hand, it may be that a person simply cannot afford to pay for legal services and associated litigation fees in order to commence or defend an action in the courts. On the other hand, when an individual litigant is in dispute with a corporation, a government agency or merely another wealthier individual, he or she is likely to be in a position of disadvantage in the litigation process because they are unable to sustain the same amount of costs or losses as the opposing party. One participant suggested that even in the high profile Stolen Generation case, in which the applicants were funded to between one-and-a-half and two million dollars, there was a substantial disparity of resources to the extent that the Commonwealth Government spent around six million dollars in defending the action.
Participants reported that while the problem of litigation costs is eased to some degree by legal aid and pro bono schemes, the problem of costs awards remains an issue for most people contemplating litigation. Community legal centres are often able to secure pro bono legal services from private solicitors and barristers for their clients. However, the risk of having costs orders made against them nonetheless has the effect of deterring many clients from pursuing their claims through court litigation. This can be considered a blind spot, which neither legal aid nor community legal assistance adequately cover. The problem is acute in public interest cases:
The issue is cost. In the type of cases we run the clients just don’t want to go there because we are up against senior and junior counsel and big end of town firms, and these firms face the same problem if they are doing it pro bono or on speculation, since the client can still lose cases.
In terms of seeking a solution to the problem of costs in the area of legal services, participants argued strongly for the Legal Aid Commission to introduce a cost-indemnity grant that would be available in cases that do not satisfy the existing criteria for legal aid grants. Such a grant would, without covering the client’s actual litigation expenses, provide that client with indemnity for any order of costs made against them should they be unsuccessful. Participants noted that there are many difficulties with implementing such a proposal given the current legal aid policies and the likely political ramifications on legal aid funding.
Participants also suggested reforms at the stage of court litigation. The rules of court might be changed so as to provide courts with greater control over the proceedings. The issue is not so much a matter of how many lawyers are involved in a case as for how long they are prepared to run it. Some lawyers are well known for their abilities in drawing out the duration of cases. Since it is the time expended on a case that largely determines the extent of the legal costs incurred, participants argued that more strict case management rules and protocols would result in proceedings of lesser duration, and thus of lesser expense. Another option they raised was for litigants to make greater use of the right to apply for a cost ruling at the outset, as exists, for example, in the Federal Court. Such a ruling would limit the amount of costs that might be ordered against the unsuccessful party.
One participant suggested that, when dealing with disadvantaged people, there is a need for rules that are not fair and balanced, but instead favour the disadvantaged party:
Tribunals, Representation and Remedies
In the case of the changeover of hearing jurisdiction from HREOC to the Federal Court, we argued that the rules on costs should be that complainants don’t get adverse costs against them but if they win they get their costs. This wasn’t supported by the Commission, who argued that it should be a cost jurisdiction to encourage lawyers to represent people. They thought this would be a good idea because legal aid was not available. But what it really means is that people thinking about going to the Federal Court have to accept the possibility of handing over huge amounts of money should they lose. But why can’t you have imbalanced costs rules—provided that the claims are not vexatious and outrageous—in areas like discrimination in which you invariably have a complainant against a large commercial organisation or government who can bear those costs, who get tax breaks for their litigation costs.
Participants generally acknowledged that, particularly in relation to legal costs, tribunals offer an important alternative to court litigation. The Social Security Appeals Tribunal was cited as a good example of a tribunal with an efficient procedure, primarily because its review hearings are effectively uncontested. Another example given was the Victims’ Compensation Tribunal. There an applicant can receive a remedy through a completely administrative paper process, one which solicitors can assist in reasonably effectively. While participants mentioned remaining problems with this forum—for example, applicants still have to report to police, which is a significant obstacle for many victims—they considered it to be a more ‘human’ adjudicative process for the victims of crime than could be provided by the formalism of the court system.
The lack of costs orders in many tribunals goes hand in hand with the lack of or limited rights to legal representation. While participants generally considered the exclusion of legal practitioners in the informal hearings of tribunals to be beneficial to litigants, they were still concerned that unrepresented litigants may be in positions of disadvantage when confronted with opposing litigants or their advocates who frequently appear in tribunals and have become skilled in tribunal processes:
The problem with some other tribunals is where clients go on their own and come up against advocates who go there everyday and are incredibly skilled. Some tribunals who have the ‘no lawyers rule’ can work against the poorer person because the other side, for example a bank or government department, is represented by someone who may not be a lawyer but has skills in that field. The rules of court then work against the client because repeat respondents know the processes and milk it. In the case of ADB it became more rule bound to protect the applicants.
It is also the case that in some areas disadvantaged people may be able to obtain representation from skilled community advocates who may not be legally trained. For example, within the residential tenancies jurisdiction of the Consumer, Trader and Tenancy Tribunal, tenants are often represented by tenants’ advocates, who are able to mitigate the actual or perceived power imbalance created by the appearance of landlords, real estate agents and government departments.
Whether or not there is scope to export any of the various tribunal models to other areas of dispute resolution depends upon many factors including the areas and complexity of law that would be operative, the extent of any potential overlap in jurisdictions and the types of remedies that would be sought by litigants. However, participants said that the ways in which tribunals generally deviated from the formal, adversarial template of court litigation made them useful models for achieving different forms of justice.
Participants said that perhaps insufficient attention had been paid to the needs of individuals litigating civil law problems. Consequently, and unlike the criminal jurisdiction in which alternative forms of dealing with offenders and resolving criminal issues have long been sought and implemented (a notable example being ‘circle sentencing’), the remedies available for civil disputes have been restricted largely to monetary forms of compensation:
The courts do not always provide justice according to the individual’s conception. In terms of creating structural change, using the courts you need to be well financed. An advantage is the seeping down of equitable remedies coming down the system, and having legislation in NSW such as the Contracts Review Act (which is not used very often) where the magistrate in the local court can make some determinations where the Act is brought up as a defence—this is not well known, but it offers further options.
It was mentioned that there is some scope under the Human Rights and Equal Opportunity Commission Act to ask the court for orders other than monetary compensation—for example, in cases where there has been discrimination as a result of a certain practice, an appropriate order might involve changing the practice rather than merely stopping the offending behaviour.
One participant raised the need to investigate the emotional, psychological and social issues which civil disputes raise, and suggested expanding the range of civil remedies to deal with these other, non-adversarial issues:
In civil matters, most of the system presumes that people want a money remedy. Certainly working in domestic violence, there was a case of a complainant making a claim against a defacto, and part of what she wanted was a public acknowledgment that the relationship had existed. She ended up in hospital because he had beat her up. Even in the hospital interviews he lied about his relationship. She lost substantially financially out of the arrangement, and she did want some money, but the public statement and an apology was as significant to her as money. This is often the same with young people, or generally people who want to make a civil claim for some kind of compensation, they want some acknowledgment of the pain and suffering.
Participants thought that in certain types of disputes the model of restorative justice is more applicable than that of economic damages. Individuals or groups of people may desire an apology or some form of public acknowledgment of wrongs done to them in place of, or supplementary to, monetary compensation.
Legal assistance and community involvement
Participants saw the access to justice barriers associated with civil law in terms of their interrelation. They said it was true that reform of the court system and improving and extending the functions of ADR mechanisms are important steps in removing the barriers faced by people with civil legal problems. However, where barriers remain in relation to access to civil legal assistance, they thought it was likely that entire sections or strata of the population would not benefit from those structural changes, and may still receive no resolution of their legal problems.
Participants identified children and young people as being among the most disadvantaged groups in relation to access to legal assistance for civil legal problems. They saw these as a large and consistently disenfranchised social group. Their vulnerability stems from the fact that they are generally considered to be in the care and under the responsibility of other people, whether parents, carers, schools or welfare agencies. As such, their legal and access to justice needs are often considered to be subsumed within the needs of their protectors. Alternatively, it may be assumed that young people simply do not have civil legal problems, because their participation in social forms of intercourse such as commerce and employment are ignored or undervalued.
Participants said that young people were among the least rights-conscious members of society, and in particular among the most ignorant of civil laws. They thought that this remained the case notwithstanding the recent educational campaigns aimed at informing school children of laws and legal institutions, including practical information on where and how to pursue remedies for legal problems. In the experience of participants, few young people take civil law problems to lawyers. Participants raised the issue of the extent to which young people had access to the various forms of legal assistance, and which forms were more conducive to being accessed or sought out by young people. While participants saw community legal centres as the most accessible sources of legal assistance—because their assistance is free, and they have expertise in general practice, including legal issues affecting disadvantaged persons—they believed that the most common reason for young people consulting with community legal centres was still to seek advice on criminal law.
Participants saw much scope for rethinking the legal needs of this particular group, and devising novel ways of dealing with these needs. For example, one participant commented that young people were most likely to be aware of their need for legal assistance at the stage when they suffer some consequence of their own or another’s acts. They thought it might be more effective to provide specific and individualised legal information and avenues for advice through those persons or institutions familiar to them, such as their school teachers or sporting clubs, rather than generally provide information to young people as a group.
Participants thought it was also important to identify and consider ways of removing barriers for young people with special needs. They saw the most vulnerable as being the homeless and children in government-organised care. In this regard, they saw a need for more community youth advocates, especially in terms of making available legal advisers independent of the Department of Community Services and other government agencies.
At a broader level, participants argued that the key to removing barriers to accessing civil justice was to encourage greater community involvement in the identification of legal needs and the provision of appropriate legal assistance. While community legal centres play an important role in political activism and legal reform, participants saw such efforts as limited by the fact that much of their motivating force derives from the staff of those centres rather than the client communities. Similarly, they pointed out that the law reform and community education functions of community legal centres have limited impact as long as they are restricted to lodging submissions and organising one-off education sessions:
Running a policy campaign in an under-resourced area such as Campbelltown, unless you are doing it with the local council on a little local issue with community help, takes a long time, need a lot of research and huge amounts of networking. Legal centres just put in submissions; there is no follow up, no pre-submission relationship building, no pursuing the issue—that kind of policy work has minimal effect.
Participants argued that there was room for legal centres to get involved in establishing permanent or long-term relationships with their client or local communities that would transcend isolated attempts at education and policy reform. The model of community development for legal centres requires that they actively engage in identifying legal needs, consult with their communities generally or specific groups within those communities, and establish projects that involve community members and that teach them skills that may be used to undertake the policy and law reform work. The participants cited a number of examples showing different ways of operating under the community development model:
- One outcome of the Tennant Creek Access to Services project was to deal with the common regional problem of there being no offices for such bodies as the Ombudsman, Anti-Discrimination Commissioner or consumer affairs agency: the government agreed to train and accredit the court worker in Tennant Creek to act as a portal for these organisations. Another outcome was a Tennant Creek Community Legal Centre to function both as a point of access for the legal services in the Northern Territory (whether state or national) and to promote community development by identifying one or two pressing issues and focussing on them in terms of education and reform.
- The Top End Women’s Legal Service has been a long-term programme involving the employment of people from the community, who receive on-the-job training and six-monthly formal training. These workers have gradually learnt about the legal system, as well as developed trust within the community. Although this model is perhaps peculiar to working with remote Indigenous communities, some aspects may be transferable to working with other disadvantaged groups such as young people or migrants.
- In Lismore there has developed a complex relationship between the community legal centre and the family support service -a large organisation that provides court support for domestic violence, financial counselling and tenancy advice.
The participants recognised that there are, of course, numerous cases of legal centres employing non-legal staff, commonly social workers, financial counsellors, youth workers and psychologists. As well, there are also cases of community organisations employing lawyers to assist in their particular legal matters. They believed that both models serve to provide a broader range of support and assistance services to the community through the direct interaction and coordination of functions between the non-legal and legal advisers. Participants argued that such multi-function, multi-skilled services encouraged individuals and groups in the community to maintain long-term and perhaps life-long relationships with the services so that there are a greater number of reasons for needing to consult them.
In the end, it was acknowledged that the variety of legal problems and disputes plays an important part in directing the ways in which legal services respond to the legal needs and the most effective reforms of the justice system:
There are campaign types of access to justice issues (for example, gambling) which lead to a client group being mobilised, political pressure, education, counselling, media, government reports, and cases which put pressure on the clubs. As a result of the influences the clubs have changed to some extent. Then there are the legal issues that will never go away (for example, family law and debt), in which case you are after a dispute resolution mechanism, since there is nothing systemic about it. Then there are situations where parties need support, in which case rules can be changed to make it fairer.
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