不同的可替代的爭議解決方法的歷史和當前趨勢
 

本文應該看待可替代的爭議性解決方法或者稱為ADR的不同方法的歷史和當代趨勢，特別是在澳大利亞法律管轄的背景下法院提供幫助的中介程序。
 

目前，世界各國已經把沖突解決方法加入司法框架，加快公正分配和理賠的過程。一些國家已經實行了強制性的調解程序，包括挪威、中國、日本、英國、澳大利亞和愛爾蘭，更多的國家正在挖掘法院資助的中介程序的可能性。（Chodosh n.d.）
 

正如ADR在過去幾年發展的那樣，法律從業者和學者已經意識到，它實際上對于法庭來說，是一個有效的方法，表明他們案例的摘要是不需要在一個不理的背景下討論，相反的是，可能通過中介過程的幫助，由黨派他們自己決定。ADR技術引起了普通人以及法律從業者的關注和自信，同時引起了政策制定者和法官的關注.

History And Current Trends Different Alternative Dispute Resolutions Law Essay
 

This paper shall look at the history and current trends of different methods of alternative dispute resolution or ADR, particularly court-assisted mediation processes in the context of the Australian legal jurisdiction.

 

At present, countries around the world have adopted alternative means for conflict resolution into their judicial frameworks in order to speed up the process of justice distribution and settlement of claims. Some of the countries that have incorporated mandatory mediation procedures include Norway, China, Japan, the UK, Australia and Ireland, and more countries are exploring the possibility of creating their own court-assisted mediation procedures (Chodosh n.d.).

 

As ADR developed over the years, legal practitioners and academics have realized that it is actually an effective method for courts to clear their dockets of cases that need not be threshed out in an adversarial context and could instead be decided by the parties themselves through the help of an intermediary. ADR techniques drew the attention and confidence of common people as well legal practitioners, and this prompted policymakers and judges to likewise put a higher premium on out of court settlements that have been arrived at with the approval of the court. Judicial intervention was finally seen as not the only way for adverse parties to settle their claims and enforce their rights.

 

The need to establish fair and efficient means for resolving conflicts is an important aspect of social life. According to Bercovitch (1996), conflict is part and parcel of any social system; a pervasive and inevitable feature of a live lived in a community.

 

Conflict is a very challenging and significant to resolve because it can lead to mutual satisfaction and growth in the society or organization, or to further conflict, violence and hostility. Conflict resolution is therefore a priority task among policymakers because it ensures the maximization of benefits in society and the elimination of possible negative consequences.

 

We often hear about conflict resolution carried out in a large-scale basis, such as in the case of international political issues. However, ADR procedures can also be applied to the adversarial context within the courtroom, and such has been increasingly done in a number of countries where the judiciary has realized the importance of non-adversarial resolution of conflicts to ease the pressure on the entire judicial system.

 

This paper takes the form of a case study of the Australian legal system and its strong emphasis on court-assisted mediation, starting with the Courts Arbitration and Mediation Act of 1991. The focus on Australian law does not necessarily mean that article will disregard examples of mediation from other countries. The researcher shall also evaluate the overall impact of court-assisted mediation procedures in other jurisdictions in order to see the global trend on ADR in general and judicial mediation in particular.

 

Review of related literature

 

This paper shall not be carried out using primary data from actual respondents. It is research based and will call for a systematic and thorough analysis of relevant literature that touch on the topic of the alternative dispute resolution in general and court-assisted mediation n particular, focusing on the history, strengths and weaknesses of these species on non-traditional and non-judicial forums of conflict resolution.

 

Because the study is fully research-based, there is a need to employ a tested review methodology that will allow the researcher to examine and synthesize a broad range of previous studies. In this manner, the researcher can gain a comprehensive understanding of all the necessary findings and methods that have been found in the past and draw logical inferences from them.

 

This paper will use the systematic review methodology as the primary tool for investigating the development of ADR methods, specifically mediation, in the context of the Australian legal framework. The systematic review methodology has been traditionally used on primary data about health care technologies such as drugs, devices and surgical interventions (Green and Moehr 2001).

 

However, there is already a trend among researchers to use this review methodology on other topics such as policy-making and social research. The Cochrane Collaboration was the first to implement the systematic review methodology to actually collate huge amounts of data that are put together in a regularly updated collection of evidence-based medicine databases. This kind of methodology affords the researcher more depth by allowing him to check on the previous findings made by other scholars and synthesizing them to create a map of where the current knowledge on the topic at hand lies.

 

Despite the usefulness of the methodology, care should be made in choosing the right electronic sources that can offer us with the most number of relevant researches, as well as in establishing the key words that will be used exhaustively for turning up previous findings on the topic.

 

For the purpose of this paper, several key words were used to search Google, Questia and other suitable online sources for information on the current trends in early education. There are number of both government and non-government agencies in Australia and other common law countries that specialize in providing in-depth research and specific case studies for ADR methods and its applicability in the legal system, and these were also consulted to gather primary data for the study.

 

The keywords used for the research are alternative dispute resolution, judicial mediation, case management, mandatory judicial mediation, and court assisted mediation. Other formulations of the main research topic yielded the same results and so only these key phrases were considered.

 

From case management to judicial mediation

 

The changing roles of the judiciary in today’s more complex world served as a catalyst that paved the way for alternative methods of conflict resolution to be more popular, even more practicable. Instead of immediately going to court, the parties to a case are encouraged or even compelled to try mediation to settle the dispute or at least narrow down the issues to be threshed out at court (Henderson 2008). Litigation procedures are now more complex and expensive, calling for legal professionals and parties to think of more cost-efficient and speedy ways of resolving their differences out of court.

 

The traditional framework by which judges used to decide their cases can be broken down into two guiding principles. In the past, judges have depended on (1) the adverse parties themselves to frame the issues on their own and on (2) legal standards such as case law, rules of procedure and statutory law to decide the case before them (Molot 2003). The rising costs of litigation, combined with the overcrowded dockets in most courtrooms across the world today, have prompted judges to take on a more active role during the pre-trial conference between the litigants, when the case still has a chance to be resolved without restoring to judicial processes.

 

Judges today take it upon themselves to advice the parties to try other avenues of conflict resolution instead of going to courts or other judicial tribunals right away. Lawyers have often been accused of being much too overzealous in defending the interest of their clients, but in the context of alternative dispute resolution, they in fact take a back seat. This is but natural because lawyers make their bread and butter from court actions, not arbitration and mediation procedures.

 

This phenomenon, however, presents the legal world with a very big contradiction. As Chodosh (n.d.) pointed out, governments today have given more emphasis to democracy and free trade. These two political and economic engines have in turn given rise to a new body of substantive law, particularly in the area of constitutional and civil law. As a consequence, there are now more possibilities for private and public disputes to come about and thus more work for judges and lawyers alike.

 

With the limited carrying capacity of courts all over the world and the limited number of judges who can effectively attend to the resolution of cases, judicial mediation became a necessary step towards preventing a full-blown trial when the disputes can be fairly settled outside the courtroom. Alternative dispute resolution has opened the way for adverse parties to resolve their differences in non-judicial forums to reduce the costs of litigation and relieve the pressure from the judicial system (Brooker). The vast amounts of time and efforts expended on drawn-out trials have pushed adverse parties to seek out “prompt, private and economical means” for conflict resolution other than judicial intervention (Squbini 2004).

 

Most forms of alternative dispute resolution are widely utilized in common law countries, particularly in the area of civil law because they involve non-fundamental liberties that can be weighed accordingly by the courts. Choosing which kind of ADR to follow is usually dependent on the nature of the issues being raised, the willingness of the parties to submit to out of court settlement, and the availability of procedures and safeguards that will ensure equity between in the final resolution.

 

Corollarily, ADR options can also be evaluated based on the relationship between the parties, the speed required to resolve the issue and the costs of pursuing the matter in court versus pursuing it without direct judicial intervention (French 2009).

 

The three main branches of ADR that are commonly used today are arbitration, conciliation and mediation (Squbini 2004). This is by far not an exclusive listing of ways by which parties arrive at mutually satisfactory end, for there is huge room creativity and innovation wherever ADR is involved. These ADR options can be briefly differentiation in this wise:

 

Arbitration means that the disputing parties present their conflict to one arbitrator or to a group of qualified third party arbitrators who determine the outcome of the case. This kind of ADR is not usually chosen because of its tendency to adhere to traditional legal remedies instead of looking for creative means to resolve the conflict. Moreover, the complete transfer of control by the adverse parties to the panel of arbitrators serves to lessen their chances of directly participating in the resolution of the case.

 

Mediation is another type of ADR method that involves an impartial third party who acts as a facilitator in a series of dialogues that are designed to reach a mutually satisfactory conclusion. Mediation is usually preferred over arbitration because it is fully voluntary and non-binding. Moreover, because it is the parties themselves who thresh out their issues, there is now room for a more creative approach to the resolution of the dispute between the parties. The mediator also follows a highly structured procedure using specialized communication techniques that encourage the parties to effectively express their views on the matter and to reach a final agreement acceptable to both.

 

Conciliation is the third method of ADR that involves forging positive relationships between the adverse parties. It is usually practiced in labor and consumer disputes (specifically Italy) but is actually encouraged in a number of other conflicts. It is often confused with mediation because it also involves walking the parties through a multi-staged dialogue. The difference lies in the more direct role that the conciliator takes in terms of advising either party on the most mutually satisfactory end that is available to them, instead of passively refereeing the parties as they progress through the stages of agreement.

 

The Australian legal system and judicial mediation: a case study

 

Before we delve into a discussion of mediation procedures as they are applied in the context of the Australian legal system, some preliminary clarifications have to be considered first. This research was conducted using the case study paradigm because of the nature of the concepts being investigated and the time restraints.

 

Shanks (2002) defined a case study as an empirical inquiry that looks at a contemporary phenomenon within its natural context, most especially when the difference between the phenomenon being study and the context in which it is embedded are not apparent. Case studies are reliant on multiple sources of information. It does not involve manipulation of variables, for instead of looking at the causality, case study is more focused on an in-depth analysis of the phenomenon under study and the its specific context.

 

Thus, we can see that narrowing down the research to a particular legal jurisdiction that is known for its effective and successful judicial mediation procedures is necessary in order to grasp the impact that this type of ADR method makes not only between the adverse parties themselves but on the entire legal system as well. Identifying particular areas of legal practice in which mediation is actually compelled will also reflect the kind of thinking behind Australian judges and courts of law as they try to tackle the growing variety of private and public disputes that arise.

 

The Australian legal system is rooted in the English common law structure, but its constitutional framework is federal, a concept that is heavily borrowed from the United States of America. The common law tradition of the legal system means that not all norms of conduct have been transformed into applicable statues, therefore giving judges and judicial tribunals a lot of leeway in resolving conflicts. These judge-made laws or more aptly termed judicial legislation comes in many forms—tort law and homicide law are usually defined by judges in most states.

 

Even with the seemingly open-ended nature of their judicial system, legal professionals in Australia all submit to the rule of law, which is the fundamental concept that guides all court decisions as well as legislative actions. The more lenient structure has also led to the development of alternative methods of dispute resolution—almost naturally, as it were, because the laws in force do not cover all possible ways of resolving a particular conflict.

 

It is no wonder, therefore, how judicial mediation has taken root in the Australian legal system to flourish as a more effective and practical solution to resolving conflicts within a shorter period of time and with lesser expenses.

 

Chodosh (n.d.) defines judicial mediation as a confidential and consensual dispute resolution that is headed by either a retired or sitting judge who is experienced in ADR methods. As defined in the prior section of this paper, mediation involves a number of successive stages wherein the parties try to work out mutually satisfactory solutions to their differences, with the mediator acting as a passive go-between. Judicial mediation banks heavily on the facilitative and communicative skills of the judicial member who acts as the mediator during the entire proceedings.

 

ADR methods started becoming feasible in Australia in the late 1970s, ushering in a cultural paradigm shift wherein lawyers are champions of ADR and judges have incorporated mediation schemes into their case management techniques (Bergin 2007). This began with the opening of Community Justice Centers wherein neighbourhood and family disputes were settled free of charge. The privacy and confidentiality of the proceedings appealed to the adverse parties and encouraged them to settle their claims amicably without resorting to a trial.

 

A mediation proceeding (unless it is sufficiently adversarial) usually begins with the mediator explaining the rules of mediation and a preliminary explanation by each party that outlines the nature and strength of their claim against the other. The sessions are usually attended by the parties themselves or their legal representatives (Urwin et al. Urwin et al. 2010 ). The whole process goes through four general phases:

 

Identification of the issues

 

Determination and assessment of options

 

Deciding which conclusion is mutually satisfactory

 

Development of an implementation plan

 

The Courts Arbitration and Mediation Act of 1991 in relation to existing family laws is the only statute today that provides for mandatory judicial mediation. The enforcement of arbitration or mediation procedures vary from jurisdiction to jurisdiction, and there are also large commercial transactions that call for self-executing arbitration clauses independent of any court intervention.

 

According to French (2009), the advent of alternative forms of conflict resolution has paved the way for the construction of a ‘multi-door courthouse’, with the court itself as the first door which opens to a wide range of ADR methods that litigants can avail of. However, members of the judiciary emphasize that it is the courts and the courts alone that can do adjudication with the strength of judicial power.

 

As the third independent and co-equal branch of government, the judiciary alone has the authority to transform its decisions into case law. Despite the direct participation of members of the judiciary in court-mandated mediation, the court must not be seen as only one of a number of ADR service providers. While it is true that the Australian courts are becoming a kind of comprehensive conflict center, they are not in any way stripped of their mandated duty to decide cases when they are called upon to do so.

 

How does a judge decide whether to encourage or compel the parties to submit to judicial mediation before a full-blown hearing is ordered? Case management appears to be the first and most essential step by which a judge considers the possibility of settling the matter through judicial mediation (Henderson 2008). The court must use its limited resources wisely, and apply them in cases wherein only judicial intervention is the only option. This is an important consideration to make because the court has to implement strategies that will promote a more efficient system of justice distribution, as well as setting performance standards for the speedy and proper resolution of cases.

 

In the case of the Supreme Court of Western Australia, for example, civil law cases dropped by a considerable percentage (from 9.3 percent to 3.5 percent) when the present system of case management and mediation was first introduced in 1996 (Boyle and Eldred 2006). Mediation was seen as the single most effective means to keep adverse parties out of the court while not necessarily depriving them of their guaranteed rights and claims. It was found to be a kind of therapeutic justice that supersedes all the financial and emotional costs of a full blown court battle.

 

Mediation is opened as an option to the parties when the likelihood of settlement is good, such as in the case of family law and labor dispute cases. However, judicial mediation in Australia seems to be getting more points for success in the former than in the latter. And while mediation in general is a completely voluntary option on the part of the adverse parties, there are also instances when mandatory mediation is a must. This happens when one of the parties to a case refuse to submit to judicial mediation (Hardy 2008).

 

Family law cases leave room for mandatory mediation because the parties who are unwilling to settle at the early stages of litigation usually end up resolving the conflict on their own at a later time, therefore wasting the court’s time and resources in the process. Moreover, the question of the need for direct judicial intervention also comes into play—does the family need to go to court to solve their problem? (Holtring 2007).

 

The answer seems to be almost always negative, and so alternative means for resolving the conflict are usually pursued. Violence, however, seems to be a strong exempting factor that prevents certain family law cases to be ordered to undergo mandatory judicial mediation (Hardy 2008).

 

On the other hand, judicial mediation as carried out by employment tribunals do not seem to have as much impact, particularly because of the similar costs associated with it. The potential benefits of saving the employment relationship between the parties were substantial but not generalizable and always hard to predict (Urwin et al. Urwin et al. 2010 ). The rationale for applying ADR methods in family law cases—preservation of future relationships—did not work out quite as well as it did in the arena of labor disputes.

 

The future of judicial mediation

 

Most modern governments today have made firm commitments to upholding individual liberty and constitutional rights as these are supported by the two-pronged engines of free trade and democracy. This global context has given rise to the development of various methods of alternative dispute resolution, particularly mediation.

 

However, mediation is by no means a new method for conflict resolution, because it has been in effect since the ancient times across a variety of old cultures, including African, Native American, European and early American societies, among others (Sobourne 2003). The modern conceptions of this age-old method have changed in line with the changing role of the courts and the increasing expectations of the people with regards to efficiency and equity of the court decisions.

 

There are in fact some built-in controversies between judicial mediation and the traditional role of judges: they are supposed to adjudicate and not mediate, to apply the law strictly and not weigh questions of individual interest, and to order and not accommodate alternative options. Following Molot’s (2003) observation, when a judge strays from the conventional framework of his roles, controversies are bound to crop up and he must make a stand as to what he should really do.

 

This in itself shows that ADR techniques in general and judicial mediation in particular have yet to be refined more in order for common people and legal professionals alike to distinguish them readily, and to submit to one or the other using the appropriate channels and for the proper motivations.

 

Indeed, the integration of information and communication technology (ICT) and legal practice has opened the door for a new breed of ADR techniques to come to the fore. Mandatory online mediation for consumers is now becoming one of the newest trends in the European legal community, a tool which simply goes around some very complex and time-consuming preliminary matters such as conflict of laws. It is less expensive, less formal and less difficult to tackle. This type of conflict resolution is quite new and has yet to be explored for all its possible benefits, but it is now being termed online dispute resolution or ODR.

Mediation services are usually done face to face, and the advent of a virtual mediation session is not yet widely accepted in different jurisdictions. Online mediation, however, is becoming more and more possible with the new generation of Internet-savvy individuals who are adept at using social networking media and other ICT tools. ODR can only become possible if there is a concurrence among these three factors: there is a need for it, technology permits it and the law provides for it. Without any one component, ODR will not become a full-fledged ADR option for transnational adverse parties (Dieguez 2008).

 

Conclusion

 

This paper has shown both the evolution and the future of alternative dispute resolution methods in general and judicial mediation in particular, studying its impact on society from the perspective of the Australian legal system.

 

However, it can be reasonably foreseen that ADR practices, specifically mediation, will continue to thrive in common law countries as well as in other jurisdictions. Not only is it seen as a viable and more preferable option to an all-out courtroom battle, it also permits borderless and speedy settlement of disputes between international parties. Mediation also seems to be the more practical option from a common-sense standpoint—just like in a contract, the parties are more likely to comply with an agreement that they themselves have crafted over an order that is issued by the court (Dieguez 2008).

 

Mediation is actually encouraged and even prioritized by certain governments in order to more efficiently allocate the finite resources of the judiciary and allow judges to concentrate on cases that truly need judicial intervention. A number of non government organizations promoting the benefits of ADR methods over litigation have also been formed at both the local and international level, raising people’s awareness of alternative options for settling claims and conflicts (French 2009).

 

While it is true that judicial mediation is a role that judges are not used (or even trained) to take on, the need for alternative means for settling conflicts prior to an actual trial is more apparent than ever. What with the public discontent with the judiciary (French 2009), it is but necessary for judges to take the lead in finding solutions to their institutional and professional problems. ADR and judicial mediation offers legal systems around the world a non-confrontational way of handling private and public conflicts while enhancing the efficiency of the judiciary in general.

 

And yet, before mediation is fully embraced by a legal system, some precautionary measures have to first be carried out to ensure that the system will really work well with ADR methods annexed to established court procedures. Transplanting the ADR framework of Australia to any other jurisdiction would be counterproductive if the requisite cultural and statutory foundations are not there. It must be remembered that the success of ADR rests as much on cultural outlooks as on legal provisions, because it brings people together and allows them to talk and resolve their issues amicably.