Alternative Dispute

Resolution
Submitted To: Dr. Karim Kamel
Submitted By: Hesham Osama

Introduction
Alternative Dispute Resolution (ADR,
sometimes also called Appropriate
Dispute Resolution) is a general term,
used to define a set of approaches and
techniques aimed at resolving disputes
in a non-confrontational way. It covers a
broad spectrum of approaches, from
party-to-party engagement in
negotiations as the most direct way to
reach a mutually accepted resolution, to
arbitration and adjudication at the other
end, where an external party imposes a
solution. Somewhere along the axis of
ADR approaches between these two
extremes lies mediation, a process by
which a third party aids the disputants
to reach a mutually agreed solution.

Table of Contents:

1-History.
2- Form of Dispute Resolution.
3- Other different forms of ADR.
4- Case Study.
5- Advantages and Disadvantages of
ADR.
6- Conclusion
7- Preferences.

History
The ADR movement started in the United States in the 1970s in
response to the need to find more efficient and effective alternatives to
litigation. Today, ADR is flourishing throughout the world because it has
proven itself, in multiple ways, to be a better way to resolve disputes.
The search for efficient and better ways to resolve disputes, and the art of
managing conflicts, are as old as humanity itself, yet it has only been
within the last thirty years or so that ADR as a movement has begun to be
embraced enthusiastically by the legal system. More recently, ADR has
become institutionalized as part of many court systems and system for
justice as a whole throughout the world.
The first ADR method to gain acceptance was arbitration, which shared
many ofits practices and procedures with the judicial system, including the
judge (or arbitrator) deciding the outcome of the dispute. ADR has
matured and developed, and mediation is being received as a preferred
alternative and has become widely accepted as a process providing more
flexibility and less procedural complexity.
The US Federal Civil Rights Act (1964) led to the formation of the CRS
(Community Relations Service in the US Department of Justice), which
was mandated to help communities and persons therein in resolving
disputes, disagreements, or
difficulties relating to discriminatory practices based on race, color, or
national origin (Moore, 1996).
Mediators were asked to assist in resolving disputes of any sort, and not
only to deal with issues of discrimination (Goldberg et al., 1992).
The US federal government funded Neighborhood Justice Centers (NJC),
provide free or low-cost mediation services. Throughout the United States
and other countries, the courts became involved in mediation, following
Professor Frank
Sanders (Harvard University) vision of a courthouse that would become a
dispute resolution center a multi-door courthouse where each case
would be referred to a process most appropriate to it. The NJCs became
part of a city-based, court-based, or district attorney-based alternative
dispute resolution service.
The American Bar Association took a proactive role in the process and
created CPR The Center for Public Resources center which provides
ADR services.
Following an act of Congress (1990), federal agencies are obligated to use
mediation in certain civil cases before going to court. Many states passed
a law requiring mandatory mediation. In the private sector, many large US
and multinational companies signed a mediation pledge, according to
which they use mediation before going to court.

Several countries are experiencing similar growth while continuing to

develop new and creative ADR processes and applications. Canada, New
Zealand, Australia, and the United Kingdom have become pioneers in the
field.
In the United Kingdom, the Advisory, Conciliation and Arbitration Service
(ACAS) was set up in 1974 to deal with industrial disputes, and at the end
of the 1980s commercial mediation services became available,
corresponding to the Lord Chancellors statement in a television interview,
Mediation and other methods of resolving disputes earlier, without going
to court, produce satisfactory results to both sides are, I think, very much
to be encouraged (Acland, 1990).
The ADR movement has been gaining popularity, and a movement that
started as an answer to needs of the judicial system, has generated
interest in a variety of fields (such as education, society, environment,
international, and gender concerns).
In the 1980s, the US National Association of Mediation in Education
(NAME) was founded, and a large variety of ADR programs, including
negotiation, problem solving, and mediation was introduced in schools.
A variety of skills and techniques are taught:
communication skills, different approaches of managing conflicts
effectively, tracing needs and real interests, moving from positions to
interests, how to deal with intense emotions, re-framing, open questions,
and so on.
The expansion of these programs and practices in education is
becoming increasingly widespread. In 1997, there were over 8,500
school-based conflict resolution programs in the United States, taught in
over 86,000 public schools.
Alongside the search for ways to solve or manage diversities that turn into
disputes and help people manage/solve existing disputes, advocates of
ADR emphasize the need to develop and use the skills resulting from
diversity that can help to prevent the escalation of disputes; this can be
done by using joint problem solving in conflict situations, in order to
enhance cooperation for the improvement of future relations.

Form of Dispute Resolution

At the simplest level, and in the ADR context under

discussion, there are two ways in which a third party to a
dispute can resolve the dispute: they can
impose/recommend an outcome or they can assist the
parties in agreeing an outcome between themselves. As
we shall see, there are several ways in which these
approaches manifest themselves, but it is important to
remember that underlying the multitude of dispute
resolution approaches lies a very simple dichotomy
between resolution of disputes by decision and resolution
of disputes by agreement.
As shown in Figure 1, agreement based approaches
include negotiation and mediation, while decision based
approaches include expert determination, arbitration
and adjudication. Some approaches fall somewhere in
between these two ends of the spectrum. Early neutral
evaluation and conciliation, for example, involve an
evaluative approach which seeks to help parties make
their own minds up without imposing a formal decision.
Other forms of dispute resolution exist, but these have
been focused on as they illustrate the major
approaches to dispute resolution.

Beyond the basic types of alternative dispute resolutions there are other
different forms of ADR:

Case evaluation:
A non-binding process in which parties present the facts and the issues
to a neutral case evaluator who advises the parties on the strengths
and weaknesses of their respective positions, and assesses how the
dispute is likely to be decided by a jury or other adjudicator.

Early neutral evaluation:

A process that takes place soon after a case has been filed in court.
The case is referred to an expert who is asked to provide a balanced
and neutral evaluation of the dispute. The evaluation of the expert can
assist the parties in assessing their case and may influence them
towards a settlement.

Family group conference:

A meeting between members of a family and members of their
extended related group. At this meeting (or often a series of meetings)
the family becomes involved in learning skills for interaction and in
making a plan to stop the abuse or other ill-treatment between its
members.

Neutral fact-finding:
A process where a neutral third party, selected either by the disputing
parties or by the court, investigates an issue and reports or testifies in
court. The neutral fact-finding process is particularly useful for resolving
complex scientific and factual disputes.

Ombuds:
Third party selected by an institution for example a university,
hospital, corporation or government agency to deal with complaints
by employees, clients or constituents.

Case Study

Alternative Dispute Resolution in education: case studies in

resolving complaints of Disability Discrimination
The Disability Discrimination Act 1992 (DDA) came into effect in March
1993. The Act makes it unlawful to discriminate against people with a
disability in many areas of public life. The purpose of the Act was to 'assist
people with disabilities to exercise their rights as Australian citizens' (3) in
recognition that 'people with disabilities are entitled to the same rights and
same opportunities as all other Australian citizens'. The objects of the Act
were to 'eliminate as far as possible discrimination against person with a
disability in areas of public life, to ensure as far as practicable that people
with disabilities have the same rights to equality before the law as other
citizens, and to promote recognition and acceptance within the community
of the principle that people with disabilities have the same fundamental
.rights as their fellow citizens
The DDA seeks to eliminate discrimination on the basis of disability in the
areas of work, accommodation, education, clubs, sport provision of goods,
services and facilities, access to premises, land and the administration of
.commonwealth laws and programs and education
The Act makes it unlawful to treat a person less favourably, than a person
without the disability, on the basis of their disability in circumstances that
are the same or not materially different. Those circumstances are not
materially different because the person requires additional services or
facilities. The DDA also makes it unlawful to indirectly discriminate against
a person with a disability. Indirect discrimination arises where a
requirement or condition exist that disproportionately affects people with
the disability, that is not reasonable in the circumstances, and that the
person with the disability cannot comply with. For example, a requirement
that a building or premise be accessed by stairs may disproportionately
affect people with mobility impairments who use a wheelchair. Given the
range of alternative means of access available this requirement could be
considered not to be reasonable, depending on the circumstances of the
.building
The Commission is obliged, where appropriate, to try and resolve matters
through conciliation. The conciliation process provides an opportunity for

parties to a complaint to meet and try and resolve the issues raised in the
complaint in an informal setting. The conciliation process is facilitated by
an Investigation Conciliation Officer(5) from the Commission's complaint
handling section. Generally the same officer who has handled the
investigation will also facilitate the conciliation process. This case
management approach to complaint handling ensures the parties are
familiar with the person who will be facilitating the conciliation process and
ensures that the officer is familiar with all aspects of the complaint and the
.types of outcomes the parties are seeking to resolve the matter
In relation to education, the Act makes it unlawful for an educational
authority to discriminate against a person on the ground of disability by
refusing or failing to accept an application for admission as a student or in
the terms or conditions of admission, or by denying or limiting access to
any benefit provided by the authority, or by expelling the student or
subjecting the student to any other detriment. These provisions are
qualified by the exception provided by the defence of unjustifiable
.hardship
Obtaining an education is a formative process in the development of every
child. A child's education is essential to all aspects of a child's development
and sets the foundation for the child's participation in the community in
general but also in relation to access to higher education and employment
and their economic and social well being in later life. Participation in
education also provides key socialisation experiences and introduces a
student to a community that it will have daily links with, often for many
.years
The DDA provides for the development of standards in the area of
education(6). Both state and commonwealth governments have invested
significant time in the development of a draft Disability Standards on
Education. The standard will provide guidance to education providers on
the obligations imposed by the DDA. The standards are currently in
development and when enacted will provide guidance to education
providers on their obligations under the DDA. The standard specifically
addresses the areas of enrolment, participation, curriculum development,
accreditation and delivery, student support services and the elimination of
.harassment and victimisation
This paper will review the type and nature of complaints received by the
Commission in the 1999-2000 and 2000-2001 reporting years. This will
include an analysis by type of disability, the subject matter of the complaint,
the outcome of each complaint and the length of time taken to finalise

these complaints. It is hoped that a detailed analysis will provide some

insight into the barriers faced by students with disabilities, the reasons why
in some circumstances student and education providers are unable to
resolve difficulties that arise in that relationship, and will illustrate the
.processes utilised by the Commission to try and resolve these matters
Complaints regarding education are prioritised for allocation on receipt by
the Commission when they relate to a student being suspended or
excluded from an educational institution, or where the student is still
attending the educational institution. The Commission's focus is to quickly
assess the subject matter of the complaint and in consultation with the
parties form a view to whether the matter can be resoled informally and
quickly through telephone negotiation or through convening a face to face
meeting. This approach endeavours to minimise the amount of time a
student is removed from the educational setting. In the Commission's
experience where a student is temporarily removed from the educational
setting the parties are generally willing to discuss the issues quickly and
informally in an effort to minimise the impact of the suspension on the
.students educational progress
The success of this early intervention approach appears to be one factor
.that contributes to the high conciliation rate of education matters
In 1999/00(7) the Commission received 445 complaints under the DDA of
which 34 complaints, or 8%, related to education. A breakdown of the
issues raised in those complaints, the type of respondent and the type of
disability of the student is provided below. Of those complaints 41% were
resolved through the conciliation process, 55% were finalised within 6
.months of receipt and 91% were finalised within 12 months of receipt
In 2000/01 the Commission received 443 under the DDA, 31 (7%)
complaints related to the provision of education (9). Of those matters 55%
were resolved through conciliation and 78% of matters were finalised
.within 6 months of receipt
Type of respondent
The education provisions of the DDA include coverage of a range of
educational authorities including government and non-government school,
universities, TAFE, community college, interest based and vocational
.training providers
The approach to the investigation and conciliation of a complaint adopted
by the Commission may differ according to the specific circumstances of

the complaint and this may be affected by the type of respondent involved,
.in particular whether the respondent is a school or university
A high proportion of complaints in the area of education relate to university
education and often involve complex issues regarding the provision of
reasonable adjustment, the provision of information in alternative formats,
exclusion due to academic performance and issues arising from requests
for adjustment that the University may see as compromising the academic
.integrity of the courses it provides
With respect to school based complaints, the table below suggests that
complaints arise from problems encountered when parents seek to enrol a
child in a primary school when issues to do with identification of disability,
provision of appropriate adjustment, and the assessment by a school or
department of the resources required to accommodate a student with a
disability, first arise. Complaints may also relate to the transition from
primary to secondary school where there is a significant change in the
school environment that some students may find disruptive if the transition
.is not appropriately planned and resourced

Type of disability of complaints

The definition of disability provided for by the DDA is comprehensive and
includes 'a disorder or malfunction that results in the person learning
differently from a person without the disorder or malfunction'; and a
'disorder, illness and disease that affects a person's thought processes,
perception of reality, emotions or judgement or that results in disturbed
.'behaviour
From the information below it appears that disabilities that relate to
learning difficulties or behaviour disturbances are more often the basis for
a complaint to the Commission. The issues that arise in providing
education services to students with these types of disabilities were outlined
.in Minns v Department of Education and W v Flinders University
In Minns the student had multiple disabilities identified as Attention Deficit
Hyperactive Disorder, Conduct Disorder and mild symptoms of Aspergers
Syndrome. The student had been excluded from attending school due to
behavioural issues that led to disruptions to class, conduct issues and
continued breaches of the discipline policy. The claims of direct and
indirect discrimination were dismissed by the Federal Magistrates Court.
The court found that compliance with certain behaviour policies was
reasonable and that a student who behaved in the same way, who did not
.have the disability, would have been treated in the same way
One of the issues raised in W was whether the reasonable adjustment the
complainant requested to accommodate her disability compromised the
academic integrity of the course she was enrolled in. The complainant had
sought an adjustment to the schedule of a teaching practicum and the
University had refused based on its belief that a minimum format of the
practicum was an essential requirement of the course. The University had
adapted the practicum format previously but advised it could not adapt the
practicum in the way the complainant requested. The Commission found
that the conferral of the degree means that the person awarded the degree
is assumed to, and can claim to, have certain skills, knowledge and
experience. The Commission found that the requirement the complainant

comply with the practicum in a certain format was not unreasonable as it

.was necessary to the academic integrity of the course

Table 2 - Type of disability of aggrieved person

Type of disability

1999-2000

2000-2001

Intellectual

Physical

Psychiatric

12

Blind/vision impaired

Deaf/hearing impaired

Autism/ASD(17)

ADHD/behaviour disorders

Down syndrome
Epilepsy/neurological

1
1

Speech

1
1

Medical condition

Unknown

.Note: Complainants may identify more than one disability

Many of the cases lodged with the Commission by students with
disabilities such as Autism, ADHD and other disabilities that affect

behaviour, are resolved through conciliation. It may be that cases such

as Purvis v State of NSW and Minns are examples of students with a high
degree of disability and so the issues raised are so complex they are
.unable to be resolved through informal processes

Case study - Andrew

Mrs T lodged the complaint on behalf of Andrew who has multiple
disabilities including an intellectual disability, Autism and epilepsy. Andrew
could not communicate and had frequent incidents of poor behaviour
including biting, kicking hitting teachers and other students. Andrew was
expelled following a violent incident with another child. The school had
adopted a range of strategies to accommodate Andrew and respond to his
behaviour, including isolation in a classroom on his own which sometimes
extended to a number of weeks. Mrs T complained that Andrew had made
no academic progress, had no individual education program and she had
not been advised of his progress. A conciliation conference was convened
and the respondents noted strategies had been adopted to ensure Andrew
stayed at the school but did not have a detrimental effect on other students
and had the opportunity to learn according to his individual needs. The
complaint was resolved through the provision of an apology, provision of
training for staff, an agreement for the development of IEP's for each
student.
Type of issue raised in complaints
The summary table below outlines at a general level the issues raised in
education complaints lodged with the Commission. The issues have been
categorised for ease of reference and refer to the major issue raised in the
complaint. Often complaints are more complex and reflect the long term
nature of the relationship between an education provider and a parent and
student. A complaint about suspension or exclusion may also raise issues
that have been problematic for some time but resulted in a suspension or
exclusion that prompted a complaint. In Purvis the parents of the student
lodged a complaint about a history of grievances including disputes about
levels of accommodation provided, multiple suspensions and eventual
.exclusion

Table 3 - Issue raised in complaint

Issue in complaint

1999-2000 2000-2001

Enrolment refused

Suspension/exclusion

Harassment

- exams

- materials/information

- assistance in classroom

15

- other

Reasonable adjustment for disability not provided

Victimisation

Breach of privacy

Transport services

Parent's aggrieved

Case study - Kelly

Kelly is deaf and has been taught Auslan in a pre-school program. Kelly
was to commence school in a small regional school but there was no
teacher with Auslan qualifications at the school. The department had
offered part-time assistance through an aide that understood Auslan but
Kelly's parents were concerned that part-time access would disadvantage
Kelly. After the Commission contacted the department it reviewed its
policies and offered an incentive to Auslan qualified teachers to move to
regional and remote areas. A teacher with Auslan qualifications was
appointed prior to Kelly commencing school.
Complaints lodged with the Commission reflect a broad range of issues
that arise in the provision of education services to students with disabilities.
The larger proportion of complaints relate to student with disabilities that

may affect the way they learn and their behaviour. As was seen in Minns,
students with these types of disabilities may require a high level of
attention and staff resources. The difference between the resources the
school is able to provide and the expectations of parents can lead to a
breakdown in relations and result in a formal complaint. Some complaints
of this type have been resolved through conciliation with the negotiation of
alternative disciplinary procedures, behaviour contracts and other
processes designed to assist the school and student accommodate difficult
.behaviour

Case study - Joshua

Joshua has ADHD and has just started attending the local high school. He
has good academic potential but he is bullied by other children and can
react aggressively. He has been suspended because he got into a fight
with another student who he claims provoked him. Joshua's parents
claimed the school had failed to address the bullying and had failed to
provide any advice to Joshua about how to react appropriately to the
bullying, did not provide any alternatives other than suspension and did not
provide him with schoolwork while suspended which affected his academic
progress. The complaint was resolved with the respondent agreeing
implement a behaviour management program to assist Joshua to respond
differently to conflict with other students, and by introducing alternative
responses to suspension.
Complaint handling processes
As noted above the Commission's practice is to prioritise the allocation of
education matters where a student is attending a school, University etc or
where a student is prevented from attending because of a suspension or
other constraint on attendance, such as transport problems. These
complaints, where possible, will be allocated on or soon after receipt. Both
parties will be contacted to discuss the allegations raised in the complaint
and an assessment of what process should be out in place is undertaken.
Where possible an informal process of resolution will be undertaken to try
.and resolve the issues as quickly and informally as possible
Steps are taken to accommodate the needs of parents through arranging
conferences around work and childcare commitments, referral to
advocates or legal services where appropriate and available, and
arranging conciliation meetings as close as possible to the where the
complainant resides. Note must also be taken of school holiday periods

which can mean periods where relevant school staff are not available to
.respond to Commission inquiries or to attend conciliation meetings

Identification of matters for conciliation

When assessing whether to proceed to a conciliation conference early in
the investigation process, or prior to formal investigation, the Commission
considers a number of factors. In the area of education these factors
include whether the student is attending school, whether there is a
prospect of early re-introduction to the school, whether the child is in
school but is prevented from fully accessing education services for some
reason such as disciplinary practices, inadequate aide or integration
support. The Commission may also consider whether the dispute is recent
or the subject of long standing disagreement between the parties and
whether it relates to a single issue or incident or a history of concerns.
Where the dispute has recently risen or where it relates to a single issue
such as adjustment for exams or attendance at an excursion, the parties
may be more willing to attend a quickly convened conference or negotiate
.some agreement through telephone conference or shuttle conciliation
A long standing dispute may already have been the subject of extensive
negotiation between the parties and so it may be more appropriate for the
Commission to initiate formal inquiry and have a clear understanding of the
history and subject matter of the complaint before trying to assist with
.resolution
In some instances the Commission has assisted the parties in clarifying
the issues in the relationship. For example where communication breaks
down between the parents and the school the Commission may assist by
refocusing on the issues related to the student's access to education
.services rather than the details of the relationship breakdown

Factors that effect education matters

Complaints in the area of education have unique characteristics that can
contribute to quick resolution. In most anti-discrimination complaints, the
complaint is lodged by the person who is aggrieved because they have
been discriminated against. In school related complaints the complainant is
generally a parent rather than the student and so the 'evidence' or
information about alleged discrimination may be second hand, that is the
parents are rarely a witness to alleged acts of discrimination unlike most
complaints where the person lodging the complaint has a direct and
.personal involvement with the incidents complained about
Parties to education complaints are often very willing to try and resolve
complaints because both parties want to see the student continue at the
school or with their course. It is a common characteristic of education
complaints that the parties have a genuine interest in the best interest of
the child or young person or student and so have a desire to resolve the
.issues that led to the complaint
Complainants often identify the issues of socialisation and belonging to a
community as reasons why they pursue a complaint where a child has
been excluded or not enrolled because of their disability. When a student is
not enrolled or is excluded they loose access to a community and this
often motivates a strong willingness to try and resolve the complaint. This
can be of particular concern to parents of a particular religious
denomination whose child has been refused enrolment in a school of a
particular denomination. It can also be of concern where the students'
siblings attend the school or there is a family history of attendance at the
school that creates a strong sense of disappointment when that link can
.not be maintained
Specific to school related complaints is the fact that schooling is
compulsory and so the parents and the state must find some way of
.providing the child with an education to meet their statutory obligations
Case study - Mr J
Mr J does not have a disability but is, he says, a bit eccentric. Mr J attends
a vocation institute and is completing a business related course. He has
been attending part-time for a number of years. He lodged a complaint
because he claimed he had been harassed by staff on the grounds of an
imputed disability. He claims that staff made comments to each other in
corridors about him and talked to each other about him within hearing of
himself and other students, implying that he had a psychiatric illness. He

claims when he had walked through the car park after class on some
occasions teachers ran for their cars and drove quickly away without
speaking to him. The respondent was contacted and confirmed that
teachers believed Mr J had a psychiatric illness and were fearful even
though, it agreed, he had never done anything to arouse those fears. The
institute issued an apology and agreed to counsel staff about discussing
students in public.
Factors that contribute to successful conciliation
Complaints about education lodged with the Commission are often
resolved through conciliation. There are a number of factors and strategies
that contribute to the successful conciliation of education matters. Factors
that can influence whether a matter can be successfully conciliated include
how current the events are, where a complaint relates to events that are
quite old it is often more difficult to resolve a complaint. Education
complaints tend to be lodged at the time the events occur as parents and
students are anxious to address any issues that arise with accessing
education at the time. This assists with the investigation of matters as
information is current, relevant staff are often still involved in the students'
education and it focuses the parties on resolving the issues for the future
rather than only seeking redress for a past wrong. The allocation process
outlined above means that early intervention can prevent what could be a
.simple matter become complex and involved
When a complaint is lodged with the Commission it is sometimes because
the parties have been unable to negotiate the provision of education
services in a satisfactory manner. The Commission can sometimes assist
by drawing on experience of solutions and proposal raised in other
complaints to encourage creative thinking about solutions to the problems
raised or by acting as a catalyst to encourage a 'reasonable approach' to
.what is possible for both parties
In the Finney hearing Commissioner Innes noted the importance of
negotiation in ensuring students with disabilities have access to education.
'Throughout the school life of any child with a disability, whilst they are
entitled to expect the provision of a reasonable level of services from an
educational authority, such provision will always be the subject of a degree
of negotiation. This is because the services, due to the nature of the
disability, are unusual, and every educational authority must assess the
.services it provides in the overall context of its budget and resources
The Commission can assist people with the negotiation process by
providing a legislative framework for those negotiations and providing

skilled staff to assist with the facilitation of that staff. The Commission's
involvement can sometimes address concerns expressed by parents and
students about the 'David and Goliath' nature of their relationship with the
educational authority. Perceptions about power imbalance or retribution
can dissuade people from utilising internal and external grievance
processes. In some cases these concerns can be allayed by the use of a
statutory framework that is impartial and standardised, which provides the
.opportunity for both parties to be involved in a negotiated outcome
Complaints in the area of education make up only a small part of the
overall complaint numbers received by the Commission but receive
significant attention and focus by the community. Many people can
sympathise with the difficulties of having children in school, or being a
student in a school or university and so can understand the additional
difficulties faced by students with a disability. It is hoped this paper gives
some insight into the types of complaints received by the Commission in
this area and the approach taken by the Commission to assist the parties
.to an appropriate outcome

Advantages and disadvantages of agreement-based ADR

Conclusion
Even though it has been said that the objective of
mediation is no more than to achieve resolution of a
precisely defined dispute, it is nevertheless not an easy
task to define the term although many attempts have
been made. A more specific definition and one
frequently quoted is that of the American writers Folberg
and Taylor, namely:
"a process by which the participants, together with the
assistance of a neutral third person or persons,
systematically isolate dispute issues, in order to develop
options, consider alternatives and reach consensual
settlements that will accommodate their
needs. Mediation is a process which emphasises the
participants' own responsibilities for making decisions
that effect their lives"
In Queensland, the Community Justice Programme
recently set up by the Attorney- General's Department to
cater to community level private disputes, explains the
process of
* mediation as practiced by them in the following terms:

Mediators do not take sides, decide who is right or

wrong, or tell people what to do.
A satisfactory result is achieved through mutual
agreement."
Dr Christopher Moore defines the process as follows:
"Mediation is essentially negotiation that includes a
third party who is knowledgeable
in effective negotiation procedures, and can help
people in conflict to co-ordinate
their activities and be more effective in their
bargaining".

It is desirable at this stage to isolate and highlight

some of the individual elements of
mediation, as the research shows it is often these
peculiarities of the process which lead to
the advantages and disadvantages of its application in
practice.
(a) Entry into the process is voluntary for all parties in
dispute.
Although the writers have seen the term "compulsory
mediation" used in research
papers it is submitted that this is not true mediation
and should not be categorized as
such. One argument put forward is that there should
be a distinction drawn between
coercion into, and coercion in mediation; that a bit of
a shove into the mediation process is not too serious
given the general ignorance of that process, as long as
the disputants reach their own outcome5. It has been
said that this intake coercion is a rather sad conclusion
but one we may have to live with for the moment6.
The writers disagree with this philosophy. Community
education will eventually cure the ignorance of the
process problem. It is suggested that if so called
'mediation' is compulsory or
coerced then a more appropriate title for the process is
conciliation.

The difference between these two processes,

particularly in their application to family law disputes
will be discussed later in this paper.
(b) The mediator controls the process, but the
disputants themselves control the content
and the outcome. A mediator has no authoritative
decision-making power.
(c) The mediator must be impartial and neutral.
(d) If either or both parties become dissatisfied with
the progress of the mediation then they can terminate
the process and simply walk out (indeed the mediator
has this right also in certain circumstances).
(e) The process is private and the results are
confidential and not available for public
scrutiny.
(f) The agreement reached by the parties themselves is
not binding in the sense of being
enforceable in a court of law unless the parties choose
to make the agreement contractually binding.

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