Innovative Approaches to Dispute Resolution and Civil Justice
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Dispute resolution and civil justice –
thriving through innovation
ADC Symposium August 2018
Professor Peta Spender
ANU Law School
ACT Civil and Administrative Tribunal
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Innovation and Context
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Critical junctures - a timeline…
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2018
Factors Affecting Choice of Process - The Dispute
Pyramid
Formal Justice
Informal Justice
Indigenous Ordering / Social Relations e.g.
families, community
Christine Parker: Just Lawyers: Regulation and Access to Justice (1999)
Factors Affecting Choice of Process – Paths to Justice
Where did people go to seek legal advice?
Christine Coumarelos and Law and
Justice Foundation of New South
Wales.
Legal Australia-Wide Survey
Legal Need in Australia
, Sydney: Law
and Justice Foundation of New
South Wales, 2012 , page 112
Factors Affecting Choice of Process – Paths to Justice
Use of Legal Advisers
Christine Coumarelos and Law and
Justice Foundation of New South
Wales,
Legal Australia-Wide Survey
Legal Need in Australia,
Sydney: Law
and Justice Foundation of New
South Wales, 2012 , page 111
7
Complementary Innovations – Mandatory mediation
Re-define access to justice
:
•
(1) informs people about the law and their legal rights,
•
(2) prevents legal problems from occurring and escalating,
•
(3) directs matters to the most appropriate form of dispute
resolution and
•
(4) provides pathways to fair and equitable outcomes
(Australian Government Attorney-General’s Department, 2009) .
Rationale of mandatory mediation
:
•
(1) to broaden access to justice and
•
(2) to improve the efficient delivery of justice
8
Complementary Innovations – Mandatory mediation
•
Evidence base regarding mandatory mediation is
building, suggesting that overall, it has been
effective in delivering timely, cost-effective and
fair dispute settlement (Waye 2016 , Sourdin
2012)
•
Victorian Retail Lease Mediation Scheme,
family provision claims – NSW Supreme Court
•
Mediation in the franchising sector and farm
debt
9
Complementary Innovations – Mandatory mediation
•
ADR practitioner as adviser in the context
of the ‘vanishing trial’
10
Complementary Innovations – Online DR
•
ODR ‘blended’ with existing processes
esp for low value claims e.g. UK, NCAT,
State courts Singapore.
•
What happens if the ADR practitioner is
no longer human?
•
Chatbots in advisory/determinative roles
•
Expert systems and computational law
11
Complementary Innovations – Arbitration
•
Limited recourse to courts – New York
Convention .
•
Precedent as a public good
•
Redacted versions of arbitrators awards
should be published … to improve the
nuances and predictability of the law
(Jones 2018)
•
Access to adjudication?
12
Complementary Innovations –
Courtesy
•
Politeness; a thoughtful action or gesture
•
What does this mean in a cross cultural context?
•
Is the native title group
incommensurable to judges?
•
FCA has favoured a broad flexible understanding
e.g.
Akiba v Queensland (No 2)
(2010) 204 FCR 1
•
Metaphysical construct of the group is radically
different – e.g. oral history, ceremonial affiliations,
dreaming, totems and relationship to country
13
Complementary Innovations –
Courtesy II
•
Difficulties of proof in native title:
De Rose v
South Australia
- [2001] FCA 1051;
Yorta Yorta v
Victoria
(2002) 214 CLR 422 at 454 and
Jango v
Northern Territory (No. 2)
[2004] FCA 1004
•
procedural reforms
–
gendered and narrative evidence
–
group evidence: r 34.125 Federal Court Rules 2011-
•
Section 82 Native Title Act and the rules of
evidence
14
Complementary Innovations –
Courtesy III
•
Speaking on country
•
‘necessary to be on country to gain a true
appreciation’ - The Hon Michael Black (2002)
•
See
Narrier v State of Western Australia
[2016]
FCA 1519 at [157]-[162]
•
Compare to a ‘view’ under s 50 Evidence Act
(Cth)
•
A
sui generis
body of rights – cultural, legal and
evidentiary complexity
15
Thank you
16
Images
•
https://www.independent.co.uk/life-style/gadgets-
and-tech/news/elon-musk-thai-cave-rescue-
submarine-useless-school-boys-underwater-
a8440541.html
•
https://www.nextbigfuture.com/2018/07/elon-
musk-and-spacex-rescue-mini-sub-are-in-thailand-
but-buddy-diving-will-be-used-for-final-rescue.html
•
https://www.dezeen.com/2018/07/10/elon-musk-
wild-boar-thai-cave-rescue/
17
References
•
Australian Government Attorney-General’s Department (2009) A
Strategic Framework for Access to Justice in the Federal Civil
System
•
Justice Michael Black, ‘Developments in Practice and Procedure in
Native Title Cases’ (2002) 13
Public Law Review
16,
•
Doug Jones, “Arbitrators as Law-Makers” (2017-2018) 6 Indian
Journal of Arbitration Law 18–28.
•
Justice Geoffrey Nettle, ‘Technology and the Law’ (Speech delivered
at the Bar Association of Queensland Annual Conference,
Queensland, 27 February 2016)
•
Tanya Sourdin (2012) Exploring civil pre-action requirements:
Resolving disputes outside courts,
http://www.civiljustice.info/access/26/
•
Vicki Waye, “Mandatory Mediation in Australia’s Civil Justice
System” (2016) 45
Common Law World Review
214–35
Explore the evolution of dispute resolution methods and civil justice, highlighting key milestones such as the establishment of various tribunals and acts, the introduction of mandatory mediation, and factors influencing the choice of legal processes. Discover the impact of innovations like mandatory mediation in enhancing access to justice and improving the efficiency of legal services.
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Presentation Transcript
Dispute resolution and civil justice thriving through innovation ADC Symposium August 2018 Professor Peta Spender ANU Law School ACT Civil and Administrative Tribunal
227784 Critical junctures - a timeline Individual docket case management in the Federal Court 1st super tribunal - VCAT established Family Law Act and Trade Practices Act Australian Disputes Centre (ADC) established Civil Rights March on Washington 2018 1997 1986 1998 1974 - 1975 1975 - 1980 1997 1963-1966 US Rule 23 first true class action process AAT established Mandatory mediation introduced Fisher & Ury Getting to Yes 3
Factors Affecting Choice of Process - The Dispute Pyramid Formal Justice Informal Justice Indigenous Ordering / Social Relations e.g. families, community Christine Parker: Just Lawyers: Regulation and Access to Justice (1999)
Factors Affecting Choice of Process Paths to Justice Where did people go to seek legal advice? Source Government advisers % 38.8 Health or Welfare advisers e.g. doctors, pharmacists 27.2 Financial advisers 22.2 Christine Coumarelos and Law and Justice Foundation of New South Wales. Legal Australia-Wide Survey Legal Need in Australia, Sydney: Law and Justice Foundation of New South Wales, 2012 , page 112 Private lawyer 21.3
Factors Affecting Choice of Process Paths to Justice Use of Legal Advisers Christine Coumarelos and Law and Justice Foundation of New South Wales, Legal Australia-Wide Survey Legal Need in Australia, Sydney: Law and Justice Foundation of New South Wales, 2012 , page 111
Complementary Innovations Mandatory mediation Re-define access to justice: (1) informs people about the law and their legal rights, (2) prevents legal problems from occurring and escalating, (3) directs matters to the most appropriate form of dispute resolution and (4) provides pathways to fair and equitable outcomes (Australian Government Attorney-General s Department, 2009) . Rationale of mandatory mediation: (1) to broaden access to justice and (2) to improve the efficient delivery of justice 7
Complementary Innovations Mandatory mediation Evidence base regarding mandatory mediation is building, suggesting that overall, it has been effective in delivering timely, cost-effective and fair dispute settlement (Waye 2016 , Sourdin 2012) Victorian Retail Lease Mediation Scheme, family provision claims NSW Supreme Court Mediation in the franchising sector and farm debt 8
Complementary Innovations Mandatory mediation ADR practitioner as adviser in the context of the vanishing trial 9
Complementary Innovations Online DR ODR blended with existing processes esp for low value claims e.g. UK, NCAT, State courts Singapore. What happens if the ADR practitioner is no longer human? Chatbots in advisory/determinative roles Expert systems and computational law 10
Complementary Innovations Arbitration Limited recourse to courts New York Convention . Precedent as a public good Redacted versions of arbitrators awards should be published to improve the nuances and predictability of the law (Jones 2018) Access to adjudication? 11
Complementary Innovations Courtesy Politeness; a thoughtful action or gesture What does this mean in a cross cultural context? Is the native title group incommensurable to judges? FCA has favoured a broad flexible understanding e.g. Akiba v Queensland (No 2) (2010) 204 FCR 1 Metaphysical construct of the group is radically different e.g. oral history, ceremonial affiliations, dreaming, totems and relationship to country 12
Complementary Innovations Courtesy II Difficulties of proof in native title: De Rose v South Australia - [2001] FCA 1051; Yorta Yorta v Victoria (2002) 214 CLR 422 at 454 and Jango v Northern Territory (No. 2) [2004] FCA 1004 procedural reforms gendered and narrative evidence group evidence: r 34.125 Federal Court Rules 2011- Section 82 Native Title Act and the rules of evidence 13
Complementary Innovations Courtesy III Speaking on country necessary to be on country to gain a true appreciation - The Hon Michael Black (2002) See Narrier v State of Western Australia [2016] FCA 1519 at [157]-[162] Compare to a view under s 50 Evidence Act (Cth) A sui generis body of rights cultural, legal and evidentiary complexity 14
Thank you 15
Images https://www.independent.co.uk/life-style/gadgets- and-tech/news/elon-musk-thai-cave-rescue- submarine-useless-school-boys-underwater- a8440541.html https://www.nextbigfuture.com/2018/07/elon- musk-and-spacex-rescue-mini-sub-are-in-thailand- but-buddy-diving-will-be-used-for-final-rescue.html https://www.dezeen.com/2018/07/10/elon-musk- wild-boar-thai-cave-rescue/ 16
References Australian Government Attorney-General s Department (2009) A Strategic Framework for Access to Justice in the Federal Civil System Justice Michael Black, Developments in Practice and Procedure in Native Title Cases (2002) 13 Public Law Review 16, Doug Jones, Arbitrators as Law-Makers (2017-2018) 6 Indian Journal of Arbitration Law 18 28. Justice Geoffrey Nettle, Technology and the Law (Speech delivered at the Bar Association of Queensland Annual Conference, Queensland, 27 February 2016) Tanya Sourdin (2012) Exploring civil pre-action requirements: Resolving disputes outside courts, http://www.civiljustice.info/access/26/ Vicki Waye, Mandatory Mediation in Australia s Civil Justice System (2016) 45 Common Law World Review 214 35 17
