“Disputes are not things: They are social constructs”

“Disputes are not things: They are social constructs”

As Felstiner, Abel and Sarat opined “Disputes are not things: They are social constructs”¹

Those same authors importantly recognised that:

• “Viewing disputes as things creates a temptation to count them²”; and,
• “Formal litigation and even disputing within unofficial fora account for a tiny fraction of the antecedent events that could mature into disputes. Moreover, what happens at earlier stages determines both the quantity and the caseload of formal and informal legal institutions³”
• “Disputes take various shapes, follow particular dispute processing paths, and lead to new forms of understanding”⁴

As Australia entered the second half of the twentieth century “dispute resolution” remained firmly embedded within litigious Court processes.  Tensions occasionally arose between self help (whilst the oldest recognised legal remedy generally frowned upon as “taking the law into one’s own hands” especially when strength or equality of bargaining power between disputants was not equal) and litigation. Ultimately, however, the resolution of disputes was the business of Courts and lawyers.

By the 1960s Court processes were, throughout the first world, increasingly seen (if they had not always been) as cumbersome, expensive and time consuming.

The emergence of a new, more affluent society and with it a burgeoning middle class, tentatively entering the previously privileged domains of the elite, saw exponentially greater volumes of commercial, real property transactions and succession disputes.

Improved financial wealth, wealth distribution and workforce participation fuelled greater social freedoms and more liberal attitudes towards (or at least the reality of) divorce, social contracts and social welfare, immigration, a socially, ethnically and gender diverse workforce, claims for indigenous self determination, non-traditional commercial transactions, (especially following the advent of internet based consumption and transacting) and exposure to non-Anglo-normative cultures and practices.

These emerging economic and social trends brought with them a greater volume of disputes and of a type and nature entirely new to a legal processes which had evolved in pre-colonisation England. Consequently existing legal processes were ill- resourced and ill-equipped to deal with such matters as:

• No fault divorce and consequent “matrimonial causes” (let alone the growing and increasingly socially accepted never married population of de facto, same sex and diverse family types);
• Social Security disputes;
• Immigration and Refugee disputes;
• Workplace disputes, particularly the movement from collective to individual or individual and group bargaining as well as the increased regulation of the workplace through discrimination and condition legislating;
• Land Rights and Discrimination disputes;
• Intellectual property, trade mark and increasingly multi-national and complex commercial disputes.

The defining elements (and perceived shortcomings) of the litigious, Court-based model of dispute resolution or determination, largely focused upon transactional disputes, were increasingly exposed as inadequate for dealing with these new and dynamic relational disputants. These involved a growing (both as to quantity and attitude) body of disputants less willing to accept authoritarian or paternalistic dictation of outcome (at great cost of time and money) and seeking greater self determination, tailoring of solutions (rather than precedent-based decision making), expedition, management and review of resolution – and all at less cost.

These disputants and their new and emerging disputes, born of changed and changing social circumstances, were difficult to accurately count.⁵ When such disputants and their disputes found their way before Courts the workload of the Court (and legal aid services assisting them) became onerous. Finally, the nature of both disputants and disputes quickly exposed the inadequacy of litigious processes in responding to and addressing relational disputes in a timely or satisfactory manner and especially not in a manner that preserved or minimised damage to ongoing relationships.

In addition to social and financial changes the latter half of the twentieth century also saw the rise of a hitherto unseen legal phenomena: the discussion and consideration of collective and universal rights.

Disputes involving such “rights” – disputes determined by reference to considerations not personal, or perhaps not even directly related, to the disputant litigants or their right to due process – represented fresh and novel challenges for legal processes.

These disputes called for new approaches which recognised both the interests of persons not involved in the litigation or the “dispute” (although perhaps the subject matter of it) and the preservation of relationships by which those rights and interests might be addressed.

This new rights-based landscape which called for conflicts to be determined by reference to considerations, including primary or paramount considerations, not directly referable or personal to disputants was also, at least potentially, poorly served by adversarial dispute resolution processes that “compensate” or “punish”. It is difficult, for example, to comprehend the utility or efficacy of such considerations in a determination founded upon the “best interests of the child”.

In this fashion the search for, move towards and eventual embrace of non-litigious dispute resolution processes was inevitable. The traditional “tribunal of fact”, adversarial model of judicial determination was increasingly seen as poorly suited to disputes where the subject matter of the dispute was a child’s interests and those interests, whilst subjectively presented, were objectively determined.

Within these fertile soils the seeds of mediation as an alternate form of dispute resolution were sown.

This paper will largely focus, at least as regards illustrative examples, upon family law experience. That is not to suggest that mediation is confined to that area of practice. Indeed, it is but one small part of the richly textured fabric of dispute resolution and mediation services in Australia.

Mediation / Arbitration / Collaborative Law / Litigation

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