Enhancing the public value of private dispute resolution

This post is one in a series of posts on this blog written by students studying Non-Adversarial Justice at the Faculty of Law at Monash University. As part of this unit, Rosalind Stanley participated in a placement at the Australian Centre for Justice Innovation. This post reflects on her placement experience.

The Australian Centre for Justice Innovation (ACJI) recently hosted the Monash Courts and Tribunals Research Roundtable, which I was fortunate to attend on a student placement. Focusing on empirical civil justice research into the use of courts and tribunals, a diverse range of speakers shared valuable insights into their experience analysing civil justice data. Speakers at the event included:

  • Dr Suzie Forell and Dr Catriona Mirrlees-Black from the Law & Justice Foundation of New South Wales, who discussed their ongoing investigation of the quality and utility of court and tribunal data for the NSW Department of Justice to inform policy and evidence-based decision-making;
  • Dr Genevieve Grant and Esther Lestrell of Monash University, who discussed their forthcoming study on profiling shareholder oppression proceedings at the Supreme Court of Victoria;
  • Dr Dominique Allen of Monash University, who discussed her work on the Victorian experience of discrimination claimants accessing court processes; and
  • Dr Liz Richardson of the ACJI and Australian Institute for Judicial Administration, who discussed the International Framework for Court Excellence and its importance in strengthening court-based research.

The need for high quality empirical legal research has been recognised in a number of recent publications, most recently the Victorian Government’s Access to Justice Review. This report identified a particular gap in the evaluation and use of alternative dispute resolution (ADR) processes. ADR refers to those processes, other than judicial determination, in which an impartial person assists those in dispute to resolve the issues between them. Informal or court-assisted settlement is the norm for dispute resolution in Australia, with only about 5% of matters proceeding through the courts to a final hearing [1].As such, many observers now favour the terms ‘appropriate’ or ‘assisted’ dispute resolution.

Despite its apparent institutionalisation, the use of ADR versus formal adjudication is still the subject of significant debate among practitioners, academics and policymakers This debate is primarily based on different conceptions of the public function of the justice system. This discussion is useful in defining the underlying values and objectives of dispute resolution. However, rather than arguing ‘for’ or ‘against’ settlement, the more important consideration is perhaps ‘when, how, and under what circumstances’ cases should be settled or resolved by formal adjudication. Improving data collection and evaluation of ADR processes provides an opportunity to enhance ADR’s public value and address some of the criticisms of ADR’s private nature.

Public Judgment versus Private Settlement

The rapid growth of the ADR movement can be traced to its potential capacity to resolve disputes efficiently at low cost, and to generate creative solutions tailored to participants’ needs. While sceptics of ADR do not necessarily dispute these claims, their arguments tend to assert that despite the potential benefits of ADR, diverting matters away from the courts undermines the important public function of the justice system. In particular, the compromise ethic of ADR subverts the protection of individual rights in favour of creative problem-solving, and reduces opportunities to guide the development of the law and articulate social values. While ADR is capable of achieving peace between parties, it cannot secure public justice, so the argument goes.

These concerns about the private nature of ADR were certainly borne out in discussions at the Research Roundtable. In the context of her research into the settlement of discrimination complaints through conciliation, Dr Dominique Allen identified that the vast majority of discrimination complaints are settled privately, making it difficult to establish clear examples of what could successfully constitute a discrimination claim. This masks the extent to which discrimination remains a problem in society, and makes it difficult for complainants to make informed choices about the handling of their complaint. As such, the law’s educative role is limited in this field.

It is important to note that acknowledging the importance of public justice does not discount the value of ADR. Rather than resisting the use of ADR, we should consider how the public justice system can better meet the needs of disputing parties and seek to gain an evidence-based understanding of when ADR is most effective.

The Public Value of Empirical Legal Research

Empirical legal research is critical in order to understand how the law operates in practice and the impact of the legal system on the community. Because empirical research is based on observed and measured data, rather than theory, it can be used to evaluate a wide range of legal processes. Without reliable evidence about the legal needs of a community, attempts to improve access to justice are likely to remain an ineffective ‘patchwork of responses’ that may result in wasted resources and poor outcomes. Reliable information about court users is essential to ensure the civil justice system is affordable, responsive, and user-friendly.

There is significant potential to make use of the administrative data collected by courts and dispute resolution services. While analysis of court judgments is useful in understanding how the law has been applied in a particular area, Dr Genevieve Grant and Esther Lestrell noted the differences between judgments and administrative data. In particular, they highlighted how the latter can provide a much richer understanding of disputants and outcomes. Judgments necessarily present a smaller and less representative sample due to the small proportion of cases that proceed to a final hearing and the fact that those cases that do proceed to trial are often ‘extraordinary’. In their research, analysis of court administrative data revealed the profile of the typical claimant pursuing the shareholder oppression remedy in the Victorian Supreme Court. Preliminary findings indicated that typical claimants in oppression proceedings were experiencing an underlying family law matter or relationship breakdown.  Such data can assist in identifying matters that could be referred to ADR or provide a rationale for more intensive case management.

 

Roundtable
Dr Genevieve Grant and Esther Lestrell presenting at the Monash Courts and Tribunals Research Roundtable

 

Insights from Court and Tribunal Data: Gaps and Recommendations

Insights from members of the Law and Justice Foundation of New South Wales provided some idea of the significant limitations and gaps that exist in available court and tribunal data. In terms of who accessed the courts, researchers found scant useful information about the parties involved in disputes. Gender was not collected by court administrators, and postcodes of parties were often found to belong to their legal representatives. Differences in ‘corporate’ and ‘non-corporate’ filing fees also created a perverse incentive for parties to inaccurately classify themselves. Limitations in the available data also included a high proportion of incorrectly categorised claims which skewed the overall profile of matters dealt with by the court. For example, the recording of outcomes as ‘discontinued’ failed to capture whether matters had settled outside court or whether parties lacked the finances to progress the matter.

Similar gaps in data have also been identified in Victorian courts. In particular, there is a lack of empirical data on the effectiveness of court-ordered ADR, including its cost-effectiveness. In the civil justice system, definitions and measures are often inconsistent, outcomes are poorly captured, collection and reporting of data is often incomplete, and data collection efforts are often under-resourced. According to the Productivity Commission, current civil justice data is ‘seriously deficient for policymaking and evaluation purposes’.

Improving the quality of ADR through evaluation procedures has been identified as a critical step in enhancing access to justice. In particular, evaluation of ADR could be assisted by improving data collection about when and where it is used, who used it, costs, and user satisfaction. Both processes and outcomes should be assessed, and the reporting of ADR outcomes could be assisted through the publication of de-identified case studies. NADRAC has recommended the development of common national performance standards to improve quality, consistency and comparability in ADR data collection. It was commonly observed by those at the Research Roundtable that the quality of data obtained through formal court processes can be variable, and that this may be explained by its collection for operational purposes rather than academic analysis. To address this, adopting a multidisciplinary approach, including insights from statisticians, IT specialists, court administrators and ADR practitioners could be used to develop common definitions for data, and to identify what information would assist future evaluation and research.

Implementation of these recommendations would go a long way to increasing the transparency of ADR processes and public value of ADR.

[1] Michael King et al., Non-Adversarial Justice (Federation Press, 2nd ed, 2014), 8.

About Rosalind Stanley
Rosalind recently completed her Arts/Law degree at Monash University. Throughout her studies, Rosalind has developed an interest in improving access to justice and community legal education. She hopes to pursue a career in policy development and law reform, and will commence a graduate role in the Department of Justice and Regulation in 2018.

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