Media

Former judge talks up power of mediation

The Australian Financial Review - 17 February 2006
By Marcus Priest

Maybe it is the ageing process or maybe one of Australia's most senior former judges has seen the error of his ways.

But according to Tony Fitzgerald - president of the Queensland Court of Appeal from 1991 to 1998 and the chairman of the Commission of Inquiry into Official Corruption in Queensland - his work as a mediator is more enjoyable than his time on the bench.

"I enjoyed parts of judicial work, particularly when I was on the Federal Court and I enjoyed the period on the NSW Court of Appeal," he told The Australian Financial Review.

"But there is something personally satisfying about assisting people in resolving their disputes rather than fighting to win at all costs. Perhaps it is just part of the ageing process."

Former NSW chief justice Laurence Street, now one of Australia's leading mediators, said while conflict was endemic in Australian society, the evolution of mediation was having a dramatic effect.

Both were speaking at the launch of a new Institute of Arbitrators and Mediators Australia handbook for mediators by Alysoun Boyle.

"It is the exploring of different positions that is one of the great contributions made by the mediation evolution," Sir Laurence said. "The more we can understand the other side's point of view in any human endeavour the better the outcome."

But Mr Fitzgerald warned the development of alternative dispute resolutions (ADR) in Australia was being hampered by a lack of funding. He said there was "no real public funding for initiatives to assist Australia in becoming an international dispute resolution centre in the global economy.

"A number of Australian governments are publicly committed to ADR, although as yet they have provided limited financial support despite the huge savings mediation provides to court resources and in business efficiency.

"It is the courts, lawyers, the business community and, very importantly, organisations such as IAMA which so far are ADR's main promoters in this country."

Mr Fitzgerald said Australia was missing the opportunity to become an international centre for mediation and arbitration like Singapore.

"No government here has taken the opportunity to fund the facilities that would encourage the growth of international dispute resolution," he said.

He added the legal profession was attempting to do it but the reality was the profession was competing against Singapore where there was a committed government and funding to promote the country for that purpose.

"If you look around Sydney - and I don't mean to be critical of organisations such as IAMA and LEADR [Association of Dispute Resolvers] - the facilities are poor and many mediations take place in offices of legal practitioners for want of a suitable venue," he said.

He warned that unsophisticated consumers of mediation services were potentially vulnerable to exploitation by unskilled, untrained persons describing themselves as mediators.

"Official accreditation and regulation of mediators have been foreshadowed," he said. "The extent of regulation that is appropriate is a matter for debate."

We gratefully acknowledge the permission from Marcus Priest and The Australian Financial Review to reprint this article.