LAURENCE STREET SPEAKS — A Personal Profile This article appeared in the July 2004 issue of Justinian – an on-line legal journal. It is included in my website with the kind permission of Richard Ackland, the publisher of Justinian. Angela Cummine, a graduate Honours law student, conducted the interview and produced this article with admirable skill and perception. Laurence Street speaks ... Angela Cummine is Justinian's interviewer-in-residence. Her most recent project was devoted to recording the thoughts of the country's leading mediator, Sir Laurence Street. You can imagine our embarrassment, after Sir Laurence had devoted a slab of a busy morning to Justinian's field agent, on discovering that her tape recorder had malfunctioned and his precious words were scrambled. Short of trying to rearrange the contents in a way that freshened-up the original, we asked him would he mind submitting to the whole experience again. He agreed. Others think that Ms Cummine fouled-up the tape deliberately for reasons best known to herself. Anyway, here is the redone interview in which Sir Laurence wrestled with a range of challenges: his mediation technique, the "suave bully" tag, the life of judges after the bench, Royal Commissions, being a third generation CJ, Jessie Street, social justice and legal justice, his reputation as a "social lion", new approaches to conflict management, and how he'd like to be remembered… Justinian: Sir Laurence, what, in your opinion, is the most important technique in mediation? Street: Developing an inter-personal relationship of trust and confidence between the mediator and each of the parties. The mediator has to make it clear to the parties that he or she empathises with their view of the conflict. You must be able to establish that so that there is no doubt in the minds of each party separately that you do empathise and understand where they are coming from. I always say you don’t have to agree with the other party. I don’t ask that for a moment. But you need to understand where the other side is coming from. To do that, the mediator has to empathise with each side so that each side is confident from private discussions that you understand their positions. Once the parties are confident that you understand their positions, they will much more readily trust you, and, if you can develop that trust and degree of personal affinity with each disputant separately, they will then trust the process, so that the parties are then not interacting separately with the mediator but imperceptibly you start them interacting with each other. Bit by bit, you as mediator more or less draw away from centre stage and leave it to the parties to interact; but you remain very much on the sideline. Then, when you think it right, or if you get the sense that the proceedings are getting out of hand, you make an input. Essentially you are trying to generate a degree of inter-activity between the disputants out of which will grow a consensus as to how the dispute may be resolved. Justinian: How do you create that trust if the fee structure is such that only one party is footing the bill? Street: I don’t think that matters a great deal. It’s only in a very few mediations that one party is paying the bill. Some years ago when there was a great deal of criticism of one of the banks over a particular form of mortgage that they had been writing for people in country areas involving loans in Swiss francs, that bank published an advertisement saying that they had retained me to mediate any disputes that arose and that they would pay all the costs of mediation. Well, parties brought their disputes in and it was never suggested by anybody that, or certainly it never came to my knowledge that it had been suggested that, because the bank had put this structure in place therefore I was in some way a servant of the bank or pushing the bank’s interest. I had been retained as a professional mediator by the bank to help in resolving these conflicts. Mediators, by and large, are professionals and we see ourselves as serving the interests of both parties as we try to help them to resolve their conflict and we do that whether it is totally pro bono or has been paid for at top commercial rates by both parties or if one of them is getting pro bono and the other is paying. It doesn’t matter. It’s just not part of the mediation process. Justinian: So it's through professionalism that you can resist the incentive to favour one party over another? Street: Yes, exactly. It is part of the professional ethics and I think professional mediators don’t have any difficulty in accepting that professional ethic. In fact, it would not occur to the particular mediator, a true professional, to favour one side or the other. Not that in a mediation you can favour one party more than the other to any significant extent anyway. A lot of people make a lot of fuss about mediators having to be impartial and so on. However, it is not like a judge or an arbitrator because a mediator isn’t deciding anything - a mediator is helping the parties. I always say in a mediation – look I belong to both parties jointly, at the same time I belong to each of you separately. Justinian: So would a mediator form a view as to how they think the process should play out? Street: Yes, I think so. Naturally, you get a feeling as to how the process should end. Then you try and help the parties to steer their discussions along that path, but the parties are in control always. But for the mediator, the goal that the mediator is pursuing - the professional goal - is to help them to get a deal, not to help one party or to try and favour another. Justinian: Does that mean that mediation is more results driven, rather than concerned with justice? Street: Yes. It is driven by what is achievable, what sort of deal can be achieved. Fairness comes into the mediation process only in so far as it’s the mediator’s obligation to deliver a fair process. How the parties use that process must be left entirely to them. You can’t allow parties to start negotiating along illegal terms. You also try to prevent a more powerful party from using that power to the disadvantage of the less powerful party. But, by and large, the mediator’s task is to provide a fair process through which the parties can negotiate a resolution. If one party is much more powerful than the other, well that's how the cookie crumbles; you can’t get away from that. The more powerful party will have much more expensive lawyers if you’re going to fight it in court. That’s simply a fact of life. But a mediator will try to minimise that by playing a little on a sense of fairness of the more powerful party. But as a mediator you can’t play God and correct an imbalance of power. Justinian: Do you think parties would be more at risk of a power imbalance in court or in mediation? Street: I think they’re more at risk in court because the more powerful party can run the case on to appeal. In a mediation you have a given period of time, usually a day and the whole purpose is to get the parties interacting and negotiating. So I think a power imbalance is much less overbearing in a mediation than in a full dress court case. Justinian: You have been described before as a ‘suave bully’ in mediation. Is that fair? Street: Well, I think I’ll have to leave that to your judgment. Justinian: I couldn’t possibly comment as I have never enjoyed the privilege of your mediation services. Street: The mediator’s task is not to stand over people and tell them what they’ve got to do, if that’s what is meant by suave. You don’t present an aggressive demeanour, but you try to present a demeanour with which the parties will be comfortable and which will win their respect and their trust. Bully? You most certainly don’t try and bully people into an outcome. On the other hand, it’s part of your job as mediator to explore the alternatives with the parties. You say things such as: 'Look, if you don’t get this settled, what’s the alternative? You go to a court, it costs you a lot of money, you can’t guarantee an outcome. You need to take into account the uncertainties of the court system, because that’s part of the context in which this dispute exists and in which we’re approaching it. If we don’t resolve it, you’re going to be going to court. And that has a lot of elements that you need to take into account…' So that’s part of the downside of litigation that parties need to be just reminded about. Now, if that’s bullying, well there are more ways than one of doing it. But the mediator has to gently point out to the parties and remind them of the various alternatives. Justinian: How successful is mediation if you look at what happens after that agreement is reached? Do parties renege on the actual agreement? Is it common to end-up in court disputing the settled agreement? Street: No. I’ve only ever had, in the whole of my experience of mediating for nearly 15 years, two or three cases where there has been difficulty with an agreement that was signed at the end of the mediation. One was an argument about some land; it had to be resubdivided as part of the settlement. We got it all signed up and then the wife of one of the parties, they were farmers from northern NSW, first generation Australians and she had no English and no understanding of our culture, she later refused to let her husband perform the agreement and it was taken to court. The other side won at first instance. The farmer I mentioned appealed and lost the appeal. Sadly, the last thing I heard was they had gone bankrupt. That was simply because culturally they were not able to accommodate the agreement that had been reached. The only other couple of instances I can recall in many, many mediations are within the cloak of confidentiality. Justinian: Do you think there are areas of the law that aren’t appropriate for mediation? Street: Yes. What I call red-blooded crime is most certainly not appropriate for mediation. On the other hand, white-collar crime quite often is appropriate for mediation such as corporate regulatory offences. But I think many of the big regulatory cases probably are not. It just depends. If you’re dealing only with sums of money then I think mediation really has a part to play. Now mediation is used in some of the magistrate’s courts, the juvenile courts where there is a plea of guilty. That is a form of sentence mediation that originated in New Zealand in which there is a sentencing conference. There has to be a plea of guilty for juveniles, and the parents come along, and the police, and the welfare worker, and the victim all sit down and you work out what is an appropriate penalty to impose. But that’s a very specialised area. As a general rule, for what I call red-blooded crime, mediation doesn’t have a place. I think mediation has a particular relevance in the anti-discrimination field because essentially it’s a process of educating parties about their dispute. If it is an ordinary commercial dispute what you’re really doing, although it sounds patronising, and I don’t intend to sound patronising, is educating both parties about the dispute. You’re helping them to look objectively at the dispute, and then see what sort of a settlement they can bear to live with. Now, in the anti-discrimination field the offender often needs to be educated about the anti-discrimination laws. The example that I often give is the publican over in Western Australia who refused service to an Aborigine and turfed him out of the hotel. Then a complaint is brought, he is taken to a court and he is fined and ordered to pay compensation - say $10,000. Now that leaves him angered, disgruntled, against the government and against the anti- discrimination laws. You’ve given $10,000 compensation perhaps to somebody who says, ‘Hey, this is a great way to make some money,’ and they can’t wait to make the same complaint again which is unfair. The point is that nobody has really learnt anything out of that. The anti-discrimination complaint ought to have been taken to a consultative mode, such as the Human Rights and Equal Opportunities Commission, which has a wonderful philosophy as an educator. For instance, they may educate the hotel proprietor saying; 'Society will not tolerate your refusing to serve an aborigine and treating him as a second class citizen… But if he is obstreperous or drunk, well that’s another matter. But whether the customer is white or Aboriginal we must try to educate the publican with an awareness of social expectations and that his or her duty to society is to embrace the anti-discrimination philosophy which is such an essential part of human rights. Now that’s where mediation can be educative - instead of sending away a bloody minded publican who is going to say, 'My God, I’ll fix them next time,' you’re sending away somebody who hopefully will mend his or her ways. Justinian: So it’s a satisfying process to be involved in? Street: I call it a feel good profession. You go home at the end of the day, whatever the dispute, having helped to resolve the conflict. It’s a very emotionally satisfying way to go about your profession. Justinian: What do you think the proper role of judges should be in retirement? Street: The old view used to be that there was no life after the bench. Some people, who were appointed as judges, began to have second thoughts about it after a few years. They didn’t find their life as fulfilling as they thought it would be In fact, for many of us, it is an ultimately professionally fulfilling life as a judge, a most wonderfully fulfilling life. It is the pinnacle of one’s activities as a lawyer, but some don’t find it congenial. And those that don’t find it congenial will become unhappy on the bench and they shouldn’t be told, 'You have to stay here, there’s nothing you can do after you leave the bench'. So you’re locking people into the bench who may become unhappy and if they’re unhappy they won’t be good judges. A good judge will normally be somebody who draws intense satisfaction from his or her involvement as a judge. It’s a professionally fulfilling role as a lawyer. If a judge is not getting a sense of professional fulfilment, he or she won’t be a good judge, so it's better to make it easy for them to step off the bench should they wish to by not attempting to proscribe what they might do after they leave. There are of course expectations that they will not do anything which is inconsistent with the former holding of judicial office - professional wrestling for example, or starting up a gambling career, managing a casino, or something which is lawful but not quite what you’d call mainstream. Justinian: So what constitutes judicial behaviour? Street: It is not easy to define, but you can recognise when something is inappropriate for a former judge because it is inevitably something with lacks the dignity you had before, a dignity that remains with you after you leave the bench. Justinian: When you were Chief Justice and Lieutenant Governor of NSW concurrently, did you find any separation of power issues arose? Street: I don’t believe that in practical terms there is any incompatibility. The Lieutenant Governor is not in office in a permanent sense; it’s a dormant role, a stand-by role. If the Governor is away, or indisposed, then the Lieutenant Governor steps in. It's only a very temporary role, filling in the role of Governor. The constitutional arrangement seems to me to work very well. The Lieutenant Governor has his or her own commission. If the Governor is not there for whatever reason - death, incapacity, absence - and if there is no Lieutenant Governor, then the Chief Justice steps in. If the Chief Justice is not there, it goes down the ranks of the judges of the Supreme Court in seniority, so you’ve always got about 40 stand-bys. There will never be a hiatus in the role of the Head of State, it can pass on down. Now that’s a very convenient arrangement of people in the community who have a status which would entitle them to fulfill that role on a temporary basis. Justinian: Would you ever be in a position where you would be signing off on a Bill that you were sitting on? Street: Sometimes yes. Sometimes as Chief Justice I’ve had litigation involving Bills that I’ve assented to when Lieutenant Governor. But it’s not a problem. The Governor is not part of the legislative process, any more than the Governor is part of the judicial process. The Governor’s authority is the executive authority of the state, but it is exercisable only on the advice of the responsible minister. The Governor’s independent authority and power is very, very constrained. Normally the Governor’s role is simply to act constitutionally on the advice of a responsible minister. Justinian: So no conflict arises in practice, but maybe more on a symbolic level? Street: Never in 14 years had I any feeling of a conflict, either myself or that some others might see me as being in a position of conflict because I was both Chief Justice and Lieutenant Governor. It just doesn’t happen. Justinian: Do you think it is appropriate for judges to sit on Royal Commissions involving ex-judicial officers? Street: Yes, I think it is entirely appropriate. Obviously, if there is a question involving the conduct of a judge or a former judge, it is much better that it be investigated by somebody who holds or has held senior judicial office, who has an awareness of what the underlying expectations are of the holder of that office. I think it is far better that these things be dealt with by somebody from the same profession who has a judicial background, who has an understanding of what are unwritten rules regarding standards of judicial conduct and behaviour. Justinian: In a close-knit world like the judiciary, wouldn’t it be difficult to avoid judging one’s peers? Street: There are enough judges about, so that not all have that really close relationship. Judges are very much cats that walk by themselves. In a sense, they are individualists - they come up as individual practitioners. There is undoubtedly camaraderie and a community amongst the bench. But they are pretty rugged individuals, they sit in their courtroom and no Chief Justice would dare to interfere with what a judge does in his or her own courtroom. It’s their courtroom; they will run it as they feel is appropriate. Justinian: Would a Premier dare to interfere? Street: In a word - no. Reverting to Royal Commissions, it is quite appropriate if there is a complaint regarding a Premier that it should be dealt with by one of the most senior judges available. And there is always a fall back if nobody can be found. One can always call on a former judge from another jurisdiction. There was a former Supreme Court judge appointed by the New Zealand Government for the Royal Commission into the Mount Erebus air crash. You can borrow judges from elsewhere sometimes to take a commission if anything is thought to be too close to home. But I think judges by training, by experience and by their general approach, are so well qualified to handle a Royal Commission that it would be very dangerous to bring in somebody who is inexperienced in having the conduct of investigations such that judges have in their ordinary judicial work. Justinian: Did you feel any pressure on a personal level as a third generation Chief Justice? Street: No, I wouldn’t say I felt pressure. No. I’d say it was intensely thrilling for me to be a third generation Chief Justice and I thought how thrilled my father and my grandfather would have been, but I didn’t feel any pressure. If it hadn’t come my way I wouldn’t have thought that I had failed. Justinian: Your mother, Jessie Street, was a well-known activist. What sort of influence did your mother have on you and your ideals? Street: An imperceptible and very significant influence in that her driving motivation in life was the pursuit of social justice within our own community and within the international community. At the United Nations Foundation Conference, she was the originator of the Status of Women Council - equality of gender. She had a very real sense of social justice and I think I came to have an appreciation of a lot of abuses, I suppose, defects in our society that were an affront to notions of social justice. It is an interesting historical fact that as society has become better textured legal justice approaches more nearly to social justice. You go back to the days of the Industrial Revolution in England, they had a good judicial system in those days but no sense of social justice: children working in factories, no equality of gender for women, indeed it wasn’t until after World War I that women were allowed to graduate from Oxford and Cambridge, those great centres of liberal learning. Legal justice bit by bit has come closer and closer to society’s expectation of social justice. We’ve seen new laws passed - the Trade Practices Act, the Anti Discrimination Act and so on - that are all examples of legal justice, statutory rules if you like, coming closer to social expectation. In a perfect society, social justice and legal justice would be identical. Of course, we would never get to that because social justice is always developing ahead of legal justice in response to changing community perceptions and community values, changing community requirements. Social justice has to be responsive to what is happening in society. That is why we elect our politicians, they come from society at large, they are aware of society’s expectations, they have the great power to legislate to try and translate that awareness of social justice into laws that the courts will then apply. Social justice will always be ahead of legal justice, but the better our mechanisms work, the closer those two concepts and the better the quality of our civilisation. Reverting to your question, my mother was a devout disciple of the pursuit of social justice, reforming laws if she thought that laws were not in conformity with just expectations. I suppose the classic example was her prominence in launching the movement in 1967, to have our Constitution amended so that Aboriginal people were fully paid up members of Australian society. Until that referendum in 1967, the Aboriginal people were not counted in a census, they were not allowed to vote, they were in truth second-class citizens or even non-citizens. That’s an affront to concepts of social justice and that was one of her significant achievements. She played a leading role in achieving that constitutional amendment that made aboriginals fully paid up members of our society. Justinian: In his recent book, Roddy Meagher described you as a ‘social lion’. On what grounds? Street: Well, what would you say? Justinian: Since I have only known you a fortnight, I wouldn’t dare speculate! Street: Do you want to have a guess? Justinian: Are you sure you would want that on the record? Street: I must say that I love people. I love interacting with people of all ages. I like the social interaction of people and that’s why I love my mediation work. I’m not using social in terms of society pages in weekend papers. I’m talking about society and social in their Greek significance. I have a lot of enthusiasm in talking with people with mutual interests. I’m much happier talking to people from a different age group. It's an exchange of emotional awareness. Now what he means by 'lion', I don’t know. If it means I consume social relationships as a lion, I don’t know. Actually maybe it means as the King of Beasts. Well, leave out the beast part! Justinian: Is it that role or another that you would most like to be remembered for? Street: Well I suppose I’d like to be remembered, as Roddy very kindly dubbed me, as a 'great judge'. That is one of the greatest compliments you can have for somebody who has been a judge for over 20 years, especially from somebody like Roddy who doesn’t lightly bestow compliments. To say that I was a good judge is very intensely rewarding, so I think that I would like to be seen as a good judge and a good mediator in the sense of a promoter of the resolution of conflict - a consensus merchant, trying to broker the resolution of conflict through consensus. But there is a lot more to the consensual approach to conflict resolution such as conflict avoidance (workplace grievance schemes) conflict management (customer complaints handling to avoid matters escalating) and conflict resolution. My field of involvement has been conflict resolution at the mediation end. But it has been very gratifying that the consensus philosophy has flowed backwards down the pipe. It came into Australia about 15 years ago as a dispute resolution philosophy, and has flowed backwards down the pipe to now recognising that there are three stages in society’s approach to conflict as we see it. The first stage is conflict avoidance such as those schemes run by the anti-discrimination office. Stage two is conflict management - if conflict does develop, then managing to avoid it escalating into a full bore stand off can be achieved through conflict management. The third stage is conflict resolution. Now what’s happened is that the conflict resolution stage was what was introduced first and society has perceived the value of consensus in conflict resolution. We now see the value in the three progressive stages, which is what I mean by flowing backwards down the pipe. All of these stages are aspects of what I call ADR. ADR in my book is simply a description. Those letters should not be seen as standing for any words at all. I know they came from words, but you have to forget the words they came from and recognise that ADR is a philosophical concept, which is directed towards consensus, first in conflict avoidance, then in conflict management and then in conflict resolution. Justinian: So, while ADR is flowing backwards, we are ultimately moving forward? Street: It had to come in at the top so people could recognise its value. Having recognised it, we’ve now taken it back to grass roots, introduced it as mainstream social interaction mechanisms in our society, or social interaction philosophy if you like. We even see it now in the defence force. General Cosgrove in June of last year signed a general defence instruction requiring ADR processes to be used throughout the defence forces where appropriate for disciplinary matters, quite apart from procurement of materials. You put a lot of men and women together in a small environment, I suppose a classic one is a small ship or submarine, and there is bound to be interpersonal conflict. Now the consensus philosophy has a very real part to play rather than some sailor being wheeled up before the captain for obstreperous behaviour. In the disciplinary field in the armed forces, ADR now has a place which has been hallowed by no less a person than General Cosgrove, the chief of defence. Justinian: I guess the most important thing now for Australia will be training up plentiful qualified mediators? Street: Oh look, there are always plenty of mediators out there. The problem is getting enough work for the mediators to do. Because there are a lot of mediation courses, people like to try mediation courses but its not all that easy to generate a professional practice. The defence force is developing its own team of mediators who can handle problems within the services. The Human Rights and Opportunities Commission has trained conciliators fulfilling their own special tailor-made consensus-oriented approach. It is not mainstream conciliation or mainstream mediation but has been very appropriately crafted to meet the statutory obligations of the Human Rights and Opportunities Commission. Again, they have a permanent team of conciliators in the workers compensation field - regular conciliators who are part of the staff there. Now in Canada the big institutions in society, the big corporate and public entities are being encouraged to introduce an ADR philosophy for the whole of their staff inter-relations the same way that the armed forces have. In Canada that is fairly well advanced. And I can see us going down that path. So when you ask what I’d like to be remembered for, I’d go back to Roddy Maegher’s comment - to have been a good judge and to have played a part in bringing and helping the development of the ADR philosophy to Australian society. Justinian: I hope that is what you are remembered for.
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