Sir Laurence Street - Mediation & Conciliation

THE MEDIATION EVOLUTION —
ITS MORAL VALIDITY AND SOCIAL ORIGIN

The Hon Sir Laurence Street, AC, KCMG, QC
Former Chief Justice of New South Wales (1974-1988) and prominent commercial mediator

Over the last decade mediation as a process for resolving disputes has gained increasing acceptance in common law countries. In judicial and court administration circles, and amongst the great bulk of the practising profession, the mediation evolution has been embraced and promoted as a significant aid to the reduction of congestion in court lists. Whilst this is undoubtedly a concomitant of the mediation evolution, there is a risk that it may obscure the true philosophical origin and relevance of the variety of consensus-oriented mechanisms increasingly being employed in the resolution of disputes.

Mediation has its own inherent moral validity and it has its own significant role in meeting a social and human need in our community. It should be recognised as an overarching philosophical concept that focuses on achieving the resolution of disputes and conflicts through consensus.

The philosophy of mediation lies at the heart of all of the consensus-oriented procedures and mechanisms that are being introduced in a variety of situations where frictions, conflicts or disputes can arise. Grievance procedures, and conflict avoidance and conflict resolution mechanisms, exemplify this broadening of the observance and practice of the pursuit of consensus.

The moral validity of mediation derives from the basic tenet that elimination of conflict and promotion of consensus across the whole spectrum of human interaction are goals to which we should aspire. This moral validity is recognised in the Talmud. It is an essential part of the Confucian culture that prevails throughout much of the Asian region of the world. And it is commanding ever-widening acceptance throughout Western society.

The other aspect of the mediation evolution that tends to be overlooked, or certainly inadequately recognized, is that the evolution does not owe its origin to the worldwide search for ways to relieve overburdened court systems. The evolution is a response to the social and human needs of people to have a far closer and more subjective involvement in resolving their disputes than is provided by the somewhat remote, unfriendly and formal process of litigation before the courts with its increasing cost both to litigants and to the public purse.

I almost invariably in mediations address to the parties some observations broadly along the following lines:

"In mediation you ladies and gentlemen own this dispute — your lawyers don't own it; the court doesn't own it; and I don't own it. You created the relationship out of which this conflict or dispute has originated, and it is your course of interaction in that relationship that has thrown up this conflict or dispute. The choice and control of the way in which we are going to resolve it, and the choice and control of the way in which the mediation negotiations will proceed, belong entirely to you as the owners of the dispute. The mediation process empowers you to take control of the resolution of the dispute; everyone else in the room is here at your elbows to assist you to achieve that result."

In contrast to the imposition of a judgment as a means of deciding (not necessarily resolving) a dispute, the element of ownership of a consensual resolution makes it subjectively acceptable to the disputants. The empowering of the disputants, and assisting them as owners of the conflict or dispute to resolve it, are not part of the role and function of the court system. It is, of course, perfectly obvious, as I have noted above, that mediation does reduce the pressures in the court lists and that this is a consequence greatly to be valued. But the attractions of a pragmatic consequence should not be permitted to overshadow recognition of the moral validity and the social value of mediation.

I have previously written a short note on the fundamental distinction between on the one hand the role of the courts, and on the other hand the provision of mediation services. I develop in that note the proposition that it is wholly inappropriate for courts to provide mediation services within their own institutions and fabric. In addition to the dangers that I discuss in that note, involvement by the courts can of itself tend to obscure the moral and social origin of the mediation evolution. Recognition of those philosophical elements will enable the mediation evolution to continue to spread its beneficial influence throughout our society, assisting us all towards living in an environment of peace and harmony.

REFERENCES

Sir Laurence Street, "The Courts and Mediation — A Warning" (1991) 2 ADRJ 203; Sir Laurence Street "Mediation and the Judicial Institution" (1997) 71 ALJ 794.

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