Originially from: World Arbitration and Mediation Review (WAMR) 

Judicial Policies on Mediation and ADR: Australian Trends
by
Laurence Boulle
Professor of Law, Bond University, Gold Coast, Australia
laurence_boulle@bond.edu.au.
This article discusses the changes in judicial attitudes toward
mediation and alternative dispute resolution (ADR) which have occurred
in the Australian courts and legal system over the last decade.
Mediation has often been referred to in Western societies as an
alternative to litigation and the legal system. Its principles and values are
said to provide a contrast to those in terms of which the courts operate,
and the concept of “alternative” denotes that mediation has qualitative
differences to litigation in terms of these norms. In this context,
“alternative” also implies a choice, in the sense that disputing parties are
able to choose to go into mediation because of its perceived advantages
over litigation, although the choice element can no longer be regarded as a
defining feature of the mediation process in the light of its mandatory
nature in many jurisdictions.
The claim of mediation and ADR to an “alternative” quality was in
fact always misleading in other respects. While mediation provided
different values and principles to litigation, it was never accurate to
portray it as an alternative system because this implied that litigation was
the ‘normal’ system. In reality, litigation involving the parties in dispute
instituting legal proceedings and continuing on to trial has always been an
exceptional way of dealing with conflict. Most conflicts are dealt with
outside the sphere of the law by the parties themselves through avoidance,
concession, denial, discussion, or struggle. Of the relatively few disputes
that are brought to lawyers, only a small proportion result in legal
proceedings being instituted, and even fewer reach the stage of a court
hearing—many are simply abandoned and others are resolved by the
parties and their lawyers through negotiation, compromise, and settlement.
Thus, in terms of prevalent modes of dispute management in
modern societies, litigation is itself an “alternative” system. In this
respect, mediation might be depicted as an alternative not to litigation but
to the most frequently used methods of dealing with disputes, namely,
avoidance, discussion, and struggle. As the majority of legal claims are