Goals and Values in Dispute Resolution
Fourth Asian Mediation Association Conference
Beijing, 20-21 October 2016
Values in Mediation
Party autonomy and self-determination
Direct participation
Non-adversarial ethos
Needs and interests focus
Focus on common interests, mutual gains
Based on local norms
Relational approach
Future focus
Individualised nature
Counter-Values in Mediation
‘There are limits to private ordering…’
Limited formality and ritual
Power factors can be determinative
Reduced transparency and accountability
Absence of precedent
Substantive justice not guaranteed
Not societal norm-supporting
Contradictions
Mediation values should inform DR goals …
… but in reality efficiency goals can trump mediation values
Civil Procedure Act 2005 (NSW) Section 56
The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act … and when it interprets any provision of this Act or of any such rule.
A party to civil proceedings is under a duty to assist the court to further the overriding purpose and … to participate in the processes of the court and comply with directions and orders of the court.
Blending DR Processes Non-adversarial DR in the courts …? … and judicialised DR in mediation….?
Adapting litigation
Pre-action DR
Case management
Court referrals to DR
Judicial mediation
Adapting mediation
Mandatory mediation
Evaluative mediation
Med-arb and arb-med-arb
Shadow of the law
Why Values Matter EU DirectiveNew York ConventionUNCITRALPrivate initiatives in ODR, global DR and the like …
Needed in the blended systems
Relevance to professional legal identity
Values reflected in standards and professional conduct rules
Quality assurance for consumers required in mediation’s growth
Many innovations are imminent
