How court-connection and lawyers' perspectives have shaped court-connected mediation practice in the Supreme Court of Tasmania
thesisposted on 2023-05-26, 05:22 authored by Olivia RundleOlivia Rundle
This thesis analyses the shaping of mediation within the court-connected context. It answers three questions: 1. What is possible within court-connected mediation? 2. What is happening within the Supreme Court of Tasmania's mediation programme? 3. Why is there a difference between the possibilities and the practice of court-connected mediation in Tasmania? The potential scope, purposes and practices of court-connected mediation are identified through an examination of mediation theory and particular issues that arise within the context of the formal justice system. All theoretical and practice models of mediation promote a degree of mediation's core features of responsiveness to the individual disputants, self-determination and cooperation. These features of mediation are realised when some key opportunities are extended to disputants within the mediation process. The opportunities are: to explore individual disputants' interests and preferences regarding the content of discussions, for disputants to participate directly during the mediation process and to work cooperatively to respond to the conflict. It is concluded that there is no reason why mediation cannot deliver these key opportunities within the context of the litigation system. Court-connected mediation has broad potential and may promote a variety of purposes and incorporate a range of practices. This thesis presents a case study of court-connected mediation practice in the Supreme Court of Tasmania ('the Court') to compare the possibilities of court-connected mediation with the reality of practice. There are no explicit constraints in the Court's mediation programme. A broad definition of mediation applies, there are no clear statements about the purpose for which mediation has been introduced into the litigation process and there are no restrictions on the kinds of mediation that may be practised. Despite this broad potential, it is concluded that mediation within the Court's programme tends to have a narrow legal scope, where non-legal concerns are largely ignored, lawyers rather than disputants are the main participants and competitive approaches are sometimes adopted within the programme. The explanation for the differences between the theoretical potential of court-connected mediation and the reality of its practice in Tasmania is based upon the influences of the connection with the formal civil justice system, court-connected mediator's practices and the ways that lawyers approach mediation. The qualitative analysis of interviews with lawyers and mediators reveals how these participants approach court-connected mediation, their perceptions of its scope and purpose and insight into some of the dynamics of lawyer-client relationships. This thesis concludes by considering whether there are implications for the Court, lawyers, disputants, mediation theorists and court-connected mediation generally. Some recommendations are made in response to the research findings.
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