Special Rapporteurs: Alay Raje and Samridhi Shrimali*

Her Honour Justice Katrina Bochner presented the 4th Annual ADR address on the topic Dispute Resolution in Post-Pandemic Australia: Time to Re-Assess the Approach on 11 August 2022. It was a hybrid event, with guests welcomed both in person and online.

ADR processes like mediation becoming a mainstay in the dispute resolution field and have undoubtedly affected Court processes. Her Honour reflects on the rapid developments in this area from the past few years, particularly its effects on the administration and access to justice and the role of Courts in the enforcement of the law.

1. Role of the Court in Dispute Resolution & Access to Justice

Her Honour quoted Sir Gerard Brennan and noted that the role of the Court is to settle disputes between individuals or between individuals and government and declare law applicable to such settlement. In doing so, governance through the rule of law is ensured. The rule of law ensures that individuals or vulnerable groups are not alienated from mainstream society. Equal application of the law is fundamental in society and the government.

Highlighting Chief Justice Murray Gleeson’s comments that ‘the law does more than simply resolve the dispute; it helps prevent other conflicts from arising and ensures that disputes are resolved without exercise of any economic or physical force’, Her Honour noted that The Hon. Chief Justice Susan Kiefel endorses this view, emphasising that courts create legal precedents and resolve disputes as they interpret and develop the base of societal norms and regulation of common law by pronouncements.

Justice Kiefel reiterated it is thanks to this regular, standardised interpretation of law that disputes can be resolved without Court intervention. Thanks to these norms, individuals can predict the outcome of the dispute with a degree of certainty. Any person can at any time walk into a court and view its proceedings or access a Court’s judgments and determinations, thus making it a transparent process.

2. A Critique on the Mediation Process

While it is not mandatory or prescribed in legislation, the mediation process has become a frequently used method of dispute resolution in the last 30 years. Her Honour noted this can be problematic as mediation does not allow the public exposition of the law or its principled modification and change, and common law may be fixed at one point in time. Thus, individual compliance with the law can be diminished, and the lawyers’ ability to advise their clients based on precedents lost. For instance, minor consumer disputes, such as the eBay online dispute resolution forum, address hundreds of thousands of disputes yearly and do not set legal precedents for the basis on which such disputes are being resolved. If mediation becomes the primary method of dispute resolution, the right of an individual to enforce their legal rights will be reduced. As a result, the strict enforcement and due procedure of law that Courts administer would be circumvented.

If mediation is the main form of solving problems, it would dilute the Courts’ demonstration to society of the fair and impartial application of the law through public dispute resolution. The role of the mediator is to ensure that power imbalances between the parties are removed as far as possible. This becomes extremely difficult when one party has substantially more experience and knowledge of the mediation process and legal budget. Mediations thus mean that justice is carried out behind closed doors, where there can be no checks, benchmarks, and balances.

3. Court-directed Mediations

Her Honour, who has more experience in court-directed mediation, considers this a preferred option for two main reasons. Firstly, it allows the parties to make an informed choice about what they want to do with the litigation. Secondly, it enables them to take a risk management approach to the litigation.

Interestingly, mediation remains the most effective form of dispute for many people, as it allows them to take a pragmatic approach to a problem that may have gotten out of control. Yet, at the same time, we must be clear about what precisely a mediation can offer.

4. Access to Justice as an Essential Feature of Dispute Resolution Mechanism

The Productivity Commission’s 2014 Report Access to Justice Arrangements defined promoting access to justice as; “making it easier for people to resolve their disputes.” The Law Council of Australia says a person’s legal right to seek justice and the person’s effective access to the legal system or legal remedy remedies is what forms access to justice. This effectively depends upon geographic location, economic capacity, health, education, cultural and linguistic variations etc. Access to justice includes fair and equitable access to legal assistance. In its 2018 Justice Project Report, the Law Council said that the concept of access to justice has successively extended beyond access to the formal justice system. For instance, access to justice now includes access to legal information and education on non-court-based dispute resolution.

In his 2019 book Online Courts and the Future of Justice, Professor Richard Susskin builds on this concept. Accordingly, he lays down four separate elements. First, dispute resolution is a justice system. Second, stopping disputes before they go too far or ensuring that the justice system’s response is proportionate and in the best interest of the litigants. Third, dispute avoidance means a cheap and ready source of legal knowledge accessible to everyone, not just lawyers. Fourth, legal health promotion, which refers to how all people can learn of and act on their rights and the benefits conferred on them by the law.

5. Pandemic Curtailing Access to Justice

The stark difference between economic classes was highlighted when the Court proceedings went virtual. Those who could not afford the required technology, lived in remote areas, or were technologically inept struggled to make themselves heard. Sole practitioners outside urban areas and self-represented litigants may have faced challenges such as data limitations when lodging documents through a Court’s online portal and being unable to rely on face-to-face interactions with registry staff. Furthermore, unlike Djokovic’s visa case, which was livestreamed, most cases were adjudicated without public participation.

According to Judge Bochner, the law and Courts entail human involvement. The immediacy of everyone being in the same room plays a big part in dispute resolution, and the online platform removes this vital element. The absence of being present in person has compromised the efficacy of mediation. Screens significantly diminish the ability to determine whether someone genuinely participates in mediation. Paying attention becomes much more difficult when one is not in the same room with the parties. Without the mediator’s facilitation in person, it becomes impossible to limit the external influences on the parties’ decision-making or ensure that they make an informed and autonomous decision.

Mediation is also substantially affected by technical aspects such as a party’s computer setup, what device they use, limited data, poor internet, etc. All this impacts the mediator’s ability to gauge a person’s body language and emotional response. Notably, a lot of a solicitor’s work is also done outside their offices during the pandemic. Young lawyers suffered as they could not learn the art of advocacy by seeing and observing good advocates argue in the courtroom. The pandemic has put all these practices to a halt. On the positive side, many thousands of dollars have been saved by allowing Interstate solicitors and counsel to appear virtually. This should remain an option for the public going forward.

6. Key Takeaways from Her Honour’s Address

  • There is now a need to integrate technology into the courtroom.
  • Current practice must find ways to allow junior practitioners to get exposed to all sorts of advocacy, the good and the bad.
  • The business of law should not become a sterile heartless machine.
  • Ensure that self-represented litigants do not become disenfranchised or that solicitors who work in rural areas and the regions do not become disenfranchised.
  • Court-ordered mediations are increasing, so legal resources must be available to all.
  • Use of good online resources is already setting us on the path towards realising Professor Susskind’s third and fourth elements of access to justice.
  • Dispute avoidance and legal health promotion envisages some resource or resources available to the public. This will help them realise what their rights are and be able to enforce them.
  • The hallmarks of our system must be maintained i.e., a Court system that treats everyone as equals, where every person has the right to be heard and the right and have a transparent system with resources available to all.

* ADC Interns and ‘Rajiv Gandhi National University of Law Online Essay Competition on Arbitration’ Winners.