Alternative Dispute ResolutionFor Criminal and Civil Cases

Textbook referencesJustice and Outcomes 11e (Beazer, Humphreys, Filippin)Dispute Resolution VCE Study Pack (Alonso)Access and Justice 9E (Beazer & Gray)

Exam questionsShort Answer questions

Briefly explain diversionary conferencing as an alternative to criminal court proceedings (2011) What are the differences between tribunals and courts? (2007)

Essay questions There is a range of alternative dispute resolution processes in the Australian Legal System.

Identify three of these processes. In what circumstances might each be used, and what are their strengths and limitations? (2011)

Using at least three examples, discuss why the use of alternative dispute resolution processes in both the criminal and civil justice systems has increased significantly in the last 30 years. (2010)

Explain and critically assess three alternative dispute resolution processes. Do these processes provide better access to justice? (2008)

Introduction – Civil CasesThere are various ways of resolving a dispute in a civil case, and there are a variety of factors to be considered when deciding which is the best method of resolving a civil case.

Courts (Judicial determination) – the traditional way of resolving a dispute is to take it to a court for settlement through judicial determination. The judiciary (including judges and magistrates) presides over the case and formal rules of evidence and procedure are used. A decision by a court is binding on the parties, although it can be appealed against.

Tribunals – tribunals have the power to resolve specific civil disputes within the area of law-making power they have been given, e.g. discrimination cases, or disputes between landlords and tenants. Tribunals are less formal in the way in which they hear cases, but are still able to make binding decisions. Some tribunals have been given investigatory powers, such as the Commonwealth Administrative Appeals Tribunal, which is ‘not bound by the rules of evidence but may inform itself on any matter as it thinks appropriate’.

Alternative dispute resolution methods – ADR methods includes mediation, conciliation and arbitration. These methods of dispute resolution are generally quicker, cheaper and less intimidating. However, other than arbitration, they are usually not binding on the parties.

Alternative Dispute Resolution (ADR): Alternative dispute resolution processes are more inquisitorial in that the parties and the referee work together to reach an acceptable decision between the parties. A mediator or conciliator helps the parties to reach a decision between themselves. While the referee does not get involved in investigating the facts, dispute resolution is conducted without strict rules of evidence and procedure, and with the referee playing a more active role.

Initiatives such as judge-led mediation and greater use of court-annexed mediation may result in a reduced need for legal representation, as parties to civil disputes are better able to resolve issues themselves, or do so in a less formal environment, with a reduced role for legal representation. This translates into reduced costs for accessing the legal system.

About 85% of all civil disputes that use alternative dispute resolution to try to settle disputes reach an agreement over some or all of the issues.

Alternative Dispute Resolution methods – Civil CasesTribunals

Tribunals offer an alternative to the strict adversarial system within a trial for civil disputes, in that they first encourage the parties to settle the dispute between themselves. Greater use of tribunals could lead to more parties in civil cases reaching a resolution more quickly and cheaply and in a more informal atmosphere. The jurisdiction of tribunals could increase to cover more types of disputes.

Within Australia there are a number of tribunals and other bodies with jurisdiction to hear certain types of cases outside the Court system. Federal tribunals include the Administrative Appeals Tribunal and the Human Rights and Equal Opportunities Commission. State tribunals include the Building Tribunal, Small Claims Tribunal and Medical Assessment Tribunal.

Tribunals are bodies established to adjudicate disputes in specific areas. Tasmanian Tribunals include:

Anti-Discrimination Tribunal Mental Health Tribunal Medical Practitioners Tribunal Mining Tribunal Motor Accidents Compensation Tribunal Resource Management and Planning Appeal Tribunal Tasmanian Forensic Tribunal Workers Rehabilitation and Compensation Tribunal

Advantages Tribunal decisions are binding. Proceedings are less costly – a nominal fee is payable and the fact that parties are able to

represent themselves reduces costs considerably as there is usually no reason to encounter the high costs of legal representation.

Fewer delays – matters heard in a tribunal are much quicker due to the waiting time for a court hearing.

Informality of atmosphere – such hearings are conducted in a less formal environment, as tribunals are not bound by rules of evidence and procedure.

Disadvantages The presence of legal representation being allowed in some cases may lead to one party being

disadvantaged or intimidated by another, depending on the type of representation one party can afford.

Disputes that exceed the monetary limit of the tribunal must be heard formally by a court. Not everyone is confident in their ability to represent their own case.

Mediation

Description: A method of dispute resolution for civil disputes using one or two third parties (mediators) to help the disputing parties reach a resolution. The mediators do not make suggestions, but help the parties feel able to negotiate for themselves. The decision made between the parties is not binding.

How are they used? It is a tightly structured, joint problem-solving process in which the parties in conflict sit down and discuss the issues involved, develop options, consider alternatives and reach an agreement through negotiation. They do this with the help of one or two trained mediators, who are neutral and impartial. Parties may bring support people or representatives with them to mediation; lawyers may be permitted in some instances.

A mediator does not interfere but allows the parties to have control of their dispute, explore the options and attempt to resolve the dispute by reaching an agreement that satisfies the needs of both parties. The role of the mediator is to facilitate discussion between the disputing parties, and ensure that both parties are being heard. The mediator does not need to be an expert in the field that is the subject of the dispute, but does need to possess a high level of conflict resolution skills.

Mediation is appropriate when a continuing relationship is required, and is most successful between neighbours and for family matters. It focuses on the feelings and values of the parties as well as the facts involved in the conflict.

A successful outcome in mediation will have occurred if the parties reach a fair compromise, make an agreement that is workable and take responsibility for keeping the agreement.

A mediation is held on a without prejudice basis, meaning that if the matter does not settle at mediation, any statements, comments or offers made at the mediation will remain confidential and will not be disclosed to the court. This ensure that the parties can speak freely and openly while at mediation without fear of anything they say being used against them at the later trial if it does not settle.

Advantages and disadvantages of mediation:AdvantagesMediation, as opposed to court hearing, allows the parties to have their say without being restricted by rules of evidence and procedure, and without having to prove fault on the other side.

The parties are able to reach an agreement that suits them both without the high cost of taking the matter to court. It is also confidential and not open to the public or media.

Mediation does not try to discover the truth or prove fault, but focuses on the relationship between the parties and on future behaviour.

The process of working together to resolve their dispute will often lead to far greater success in terms of the agreement being followed.

DisadvantagesMediation is not appropriate when there is a gross imbalance between the parties in terms of power and resources (for example an employer and an employee). It is also unsuitable for disputes involving violent and threatening behaviour, including domestic violence and child abuse.

Mediation will only work when both parties decide to take part and are willing to abide by any agreement reached.

Mediation is not legally binding, although in most situations a deed of settlement is drawn up, which is enforceable through the courts.

Conciliation

Description: A method of dispute resolution for civil disputes which uses a third party to help disputing parties reach a resolution to their dispute. The third party can make suggestions, but the parties reach the decision between themselves. The decision is not binding.

How are they used? The third party does not make the decision, but listens to the facts, makes suggestions and assists the parties to come to their own decision. The conciliator assists by exploring solutions to the dispute and suggesting possible options.

Conciliation differs from mediation in that the conciliator exercises a greater influence over the outcome than is done in mediation. The conciliator, who is usually someone with specialist knowledge, suggests options and possible solutions and is more directive than a mediator.

A magistrate or a registrar may refer a civil proceeding or part of a civil proceeding for a pre-hearing conference, which resolve the dispute using conciliation.

Advantages and disadvantages of conciliation:AdvantagesProvide an opportunity for the parties to discuss the settlement of claims and determine the issue in dispute prior to a court hearing. This saves costs and valuable court hearing time because matters can be settled without going to court.

DisadvantagesThe decision made by the parties is not binding, but is more likely to be followed because it has been made in front of a third party.

Arbitration

Description: A method of dispute resolution for civil disputes, where the third party (arbitrator) is appointed to listen to both sides of the dispute and make a decision that is binding on the parties.

How are they used? Arbitration may be compulsory arbitration, or parties may have previously agreed to settle their dispute by arbitration. Arbitration is more formal than conciliation and mediation but not as formal as a court hearing.

In Victoria, civil matters before the Magistrates’ Court where the claim is less than $10,000, the parties must settle their dispute before an arbitrator, usually a magistrate, or in minor issues the court registrar.

Advantages and disadvantages of arbitration:AdvantagesThe decision made by the arbitrator is legally enforceable.

Arbitration avoids the formality of the court and the strict rules of evidence and procedure. It also avoids the need for legal representation.

DisadvantagesThe resolution is decided by the arbitrator, which is legally binding. Therefore the parties to the dispute do not have a final say in the resolution of their dispute.

Strengths and weaknesses of ADR

Strengths Much less formal than court processes, as strict rules evidence and procedure are not followed. Conducted in a safe and supportive environment where mediators are trained to make the

parties feel comfortable, supported in their point of view and listened to. Usually held in a more suitable venue for both parties rather than a courtroom. Generally cheaper than litigation as fewer people are involved and the matter is dealt with

quickly. Confidential, unlike a court, which is usually open to the public. Voluntary, which means the parties can leave at any time. Flexible and can be modified to suit the needs of the parties. Better able to address the needs of the parties rather than working out who is in the wrong, and

more concerned about the future relationship between the parties. Able to make a broader range of solutions available as parties can tailor a resolution or

compromise that suits them, rather than being restricted to orders available to judicial officers. More likely to reach decisions that will be followed because the parties have reached the

decisions themselves (except arbitration). Not adversarial and therefore both parties can come away from the process feeling as if they

have won. Able to identify the issues even if the parties do not reach an agreement. Able to offer savings for the justice system as cases resolved through ADR save time, money and

resources of the courts.

Weaknesses Other than arbitration, the decision is not binding. One party may compromise too much because they are trying to co-operate as much as possible. One party may be more manipulative or stronger than the other party and the other party may

feel intimidated into reaching a resolution. It may not be appropriate if there is animosity between the parties. One party to the dispute may refuse to attend the resolution process if it is voluntary. It is not appropriate for the resolution of most criminal cases or for large civil disputes. If a decision cannot be reached between the parties the matter may need to be taken to court

anyway, delaying the time of final resolution.

Do ADR provide better access to justice?

Individuals may attempt mediation at any time, without needing a court direction.

The cost of mediation varies depending on who is providing the mediation. Some organisations provide free services, while others charge depending on the claim sought. In most instances the cost of a mediator will be far less than court fees.

Courts can refer civil cases to mediation to speed up their resolution and reduce the backlog of cases. Mediation is seen as working alongside courts, rather than in opposition to them.

The Supreme Court of Victoria has reported a settlement rate using mediation of approximately 79%, with an estimated annual saving of $30 million in legal fees.

All studies of dispute resolution show that people greatly value quick resolution of disputes and the opportunity to put their case in the presence of a neutral person.

Other Alternative Dispute Resolution Methods

Abandonment: A person who believes that they have a legal claim against another may decide not to proceed with the claim (abandon the claim). The reasons for this might include:

The person is unaware of methods of resolving the dispute The loss or damage is minimal The cost of pursuing the claim would be more than the amount claimed The defendant has few resources to pay, even if the claim succeeds There is insufficient evidence to prove a claim against the defendant Pursuing the claim would take a long time The person feels that pursuing a claim will take too much effort To avoid the adverse or embarrassing publicity that might be caused by pursuing a civil claim

Self-help: Self-help may be a fast and simple solution to the problem. For example a person whose neighbours have trees that hang over his/her garden may resolve the problem by cutting down the overhanging branches. However, the neighbours may not like the branches of the trees being cut down. A better way to deal with the issue may be by negotiation.

Negotiation: Negotiation should be the first method of dispute resolution. The aggrieved individual should first discuss the matter with the other party to see if the dispute can be resolved amicably and a consensus reached. If this is not possible, then the matter can be taken further. Negotiation is more likely to succeed when both parties can negotiate from relatively equal positions.

Investigation: Most disputes involve some investigation but it is only occasionally successful in finally resolving the dispute. Investigation is an essential step in all dispute resolution options. In some cases, the other dispute settlement methods will be avoided as the investigation may have revealed important facts which were previously unknown or in dispute. However, investigations are expensive and therefore are carried out only if there is a possibility of a real or significant dispute.

“Alternative Dispute Resolution in the Civil Justice System” Issues Paper – Summary (March 2009)

National Alternative Dispute Resolution Advisory Council (NADRAC)

www.nadrac.gov.au/publications/publicationsbydate/pages/ADRintheCivilJusticeSystem-IssuesPaper.aspx

Key points from Issues paper

In 2008, the Attorney-General asked NADRAC to enquire into incentives that would encourage greater use of alternative dispute resolution (ADR), and what barriers need to be removed.

A widespread lack of knowledge and understanding about ADR among the public may be one of the most significant barriers to greater use of ADR in the civil justice system. This lack of awareness might mean that disputants do not consider ADR, or that they may deem it to be inappropriate despite there being an appropriate ADR process available.

In the federal civil justice system, ADR service providers are private practitioners and companies, industry groups, government agencies, courts and tribunals and government funded community organisations. The provision of ADR services by the courts raises issues about the most appropriate and effective role for courts, judges and court staff. Some propose that courts should be comprehensive ‘one-stop shop’ dispute resolution centres, while others support varying degrees of separation between ADR service providers and courts. There are questions about how ADR services should be provided in courts and tribunals, and whether judges should provide some ADR services. ADR processes conducted by judges might have advantages such as greater chance of resolution, but disadvantages such as damage to public perception of the courts, and loss of voluntariness and confidentiality of the ADR process. ADR referral might be faster if it occurs within the court, but the cost of training court staff or judges to conduct ADR services is a relevant consideration.

Issues relating to private and community based ADR services include their quality, availability and cost. Providing ADR services separate from the court structure might help to facilitate a non-litigious approach.

NADRAC has emphasised the importance of making a proper assessment of the suitability of ADR processes for different disputes and clients, and then referring clients to the most appropriate process. This requires an understanding of the different ADR processes available and their particular attributes and benefits. Courts, tribunals, the legal profession and others have a role in referring parties to ADR. Legal practitioners, judges and court/tribunal staff all need a broad understanding of the range of ADR services. Some lawyers may be reluctant to engage with ADR for various reasons. Greater encouragement by legal professional bodies and greater education about ADR in university law courses and ongoing professional development programs may help to improve practitioner awareness. Judges and other court staff may benefit from targeted training about ADR. The imposition of obligations on courts and lawyers to provide parties with information about ADR could also be considered. Other referrers may also need greater understanding of ADR, such as consumer bodies, business associations, psychologists and social workers.

The Attorney-General has asked NADRAC to look at barriers and incentives to the use of ADR both as an alternative to litigation and during court or tribunal processes. Barriers which prevent people from using ADR might be legal, structural, cultural or practical. Action to create

incentives to use ADR might include changing court procedures, improving public awareness of ADR, ensuring high-quality ADR service provision and making ADR mandatory in some cases. Mandatory ADR requirements could be set up in several ways, including a specific legislative pre-filing requirement, pre-action protocols and/or imposition of overriding obligations on lawyers and litigants. Benefits of mandatory ADR might include reduced strain on the court system and less cost and delay for disputants. However, some types of disputes may not be suitable for mandatory ADR. Issues also arise as to the impact on the traditional voluntary nature of ADR and integrity of ADR processes, and whether there is a need for mandatory participation requirements such as ‘participation in good faith’. Other issues to consider include the availability of a sufficiently qualified workforce to meet the increased demand that may be generated by a mandatory requirement and how litigants can demonstrate the requirement has been met.

NADRAC has been asked to consider how methods and techniques drawn from ADR may be used to enhance court and tribunal hearings (as distinct from provision of ADR processes as an adjunct to litigation). Examples of techniques developed in ADR which could be used include a less formal approach, allowing the parties to speak for themselves, and encouraging the parties to communicate with each other. Some of these techniques are already used in some courts and tribunals. Techniques developed in ADR are currently used in the family law system through Family Consultants and the Less Adversarial Trial, and in the civil justice system more generally in the receipt of expert evidence. Other ideas for using techniques developed in ADR to enhance court/tribunal processes include producing agreed statements of facts, judicial case appraisal and a dispute management judge.

Alternative Dispute Resolution as a Judicial Tool(A comment)

In Australia, and I suspect elsewhere in the common law world, the last few decades have seen an increased resort to alternative dispute resolution and a decrease in the adversary trial process. In this sense it can be said that ADR is a useful judicial tool because it relieves the pressure on the judicial system and thus, the pressure on community resources needed to maintain that system. In Australia there appears to be increasing acceptance that in order to save the State the expense of properly maintaining the judiciary - and this includes the provision of legal aid in civil cases - people should be encouraged to resolve their disputes by ADR. But this encouragement could also be seen as an abdication of the State's responsibility to provide a modern and efficient judicial system that encourages the resolution of disputes in accordance with law and it also takes the pressure off the judiciary to reform its procedures so that they are as efficient and cost effective as ADR.

Preparation for a trial is generally a slow process that uses up time and costs. A benefit of ADR over the trial method of dispute resolution is the fact that the parties can enter into ADR much quicker than they can enter into the trial, and thus resolve the dispute much quicker. The down side of this is the risk that the dispute may be resolved on the basis of inadequate facts and therefore produce an unfair result. For it has been said that, "Inexpensive, expeditious and informal adjunction is not always synonymous with fair and just adjudication."1

Another benefit of ADR over the trial process is that it affords litigants privacy that is not afforded them by the trial process. I think that this is often the reason for commercial disputes going to arbitration rather than the courts. But this benefit, like early resolution, comes at a cost; this time to society in general. It must not be forgotten that the court is not just a publicly funded provider of dispute resolution services.2 As the Chief Justice of New South Wales has observed on more than one occasion, the courts, as an arm of government, publicly affirm rights and publicly denounce improper behaviour, thus setting standards.3 So, ADR cannot be described as a tool assisting the judiciary when it keeps out of the public eye cases in which the public have a legitimate interest in the outcome. As Judge Edwards said, "Just imagine the impoverished nature of civil rights law that would have resulted had all the race discrimination cases [in America] in the sixties and seventies been mediated rather than adjudicated."4 Related to this is the fact that ADR does nothing to assist the judiciary to develop the common law. This development is important because it promotes predictability and certainty that in

1 Judge Harry T Edwards, "Alternative Dispute Resolution: Panacea or Anathema?" (1986) Har L Rev 668. 2 Gleeson CJ "The Future State of the Judicature" November 1998.3 E.g., Spigelman CJ Opening Law Term Dinner," 1 February 1999.4 Supra at 697.

turns promotes the orderly development of a society. I wonder how would the law of negligence developed if Mrs Donoghue's claim had been resolved by ADR?

I have to accept that ADR has grown to be a useful judicial tool because it enables litigants to get a result – not necessarily justice in accordance with law – but a result or resolution of the dispute quickly and relatively inexpensively. But my point is that the down side of the growth of ADR, the diminution of the role of the judiciary as an arm of government and the slowing of the development of the common law, should be the constant spur for the judiciary to think "outside the square" and change its processes and procedures to minimise the cost and delay of the trial process. This is not the occasion for a full debate on this complex issue, but I suggest that the growth of ADR and the corresponding disappearance of the trial should cause the judiciary to re-examine such fundamental matters as the importance of the single cataclysmic event, a continuous trial. Why must we have a single continuous trial? Why do we have all the costly and lengthy preparation for this showpiece of a trial? Can there be some joining of the best of ADR and the best of the trial process that will give greater access to a just result in accordance with law for everybody? Obviously I don't pretend to have the answers to these questions, but I am willing to engage in debate about them.

Perhaps the courts should provide a full ADR service as a branch of their traditional work. I see it rather like a department store with the quality goods, or trial process in accordance with law, on the upper floors and a bargain basement, or alternative dispute resolution in the basement. Close collaboration between the upper floors and the ground floors might work to the advantage of both. The standards applied on the upper floors might rub off onto the ADR in the basement so that the results of ADR align more with justice than expediency, and the procedures in the basement might rub off on the upper floors and reduce cost and delay of the trial process. After all, not all cases or disputes are suited to resolution by trial. In fact in many instances, small claims, family will disputes and the like, the process of resolution by a trial worsens the situation. See, for example, Burchell v Bullard [2005] EWCA Civ 358 where the recovery of £5,000 cost £185,000.5 Yet notwithstanding this rather obvious fact, the majority of disputes start off in the courts and follow procedures designed to conclude with a trial process and only get to ADR by pre-trial diversion.

I understand that that there have been some developments along these lines in Switzerland and France, and perhaps other places as well.6 The Swiss doctrine, about which others no doubt know more than me, of the so-called "Juge D'Appui", or support judge, is an arrangement whereby a judge works in tandem with the arbitration process, lending assistance when needed by making such court orders as might be necessary to facilitate the process or to enforce particular measures 5 Discussed by Justice Steytler of the Supreme Court of Western Australia, "Western Australia Institute of Dispute Management Launch", 28 September 1006.6 Justice Steytler supra.

when no other enforcement mechanism is readily available. The support judge also has the power to suspend proceedings to set aside an award in order to give the arbitrator an opportunity to eliminate the grounds for setting it aside, where that can be done.7 This is an idea that might be worthy of further consideration to bring ADR and trial process closer together. Perhaps points of law that arise in the course of ADR could be referred to the support judge for determination in accordance with law. Why shouldn't the courts give advisory opinions? In Australia there is a power for a judge to do this in certain cases when he or she is sitting in an Administrative Appeal Tribunal8. This kind of development might facilitate the resolution of disputes and at the same time develop the law and permit the declaration of matters of principle in a public forum. I realise that these ideas face difficulties but the growth of ADR, whilst acting as a tool to the judiciary, is also acting to its detriment, calling for some radical re-thinking.

Chief Justice Peter Underwood AOChief Justice of the Supreme Court of TasmaniaAustralia.

7 Catherine Kessedjian, "Sir Kenneth Bailey Memorial Lecture: Dispute Resolution in a Complex International Society" 29 Melb. U. L. Rev. 7658 See Administrative Appeals Tribunal Act (C'th) 1975, s59.

Alternative Dispute Resolution methods – Criminal CasesDiversionary conferencing

Diversionary conferencing has attracted widespread support because it is viewed as embracing the ideals of healing and restoration, empowering offenders, victims and families, conceiving of young people as integral members of a family and a community, and linking with traditional notions of Indigenous justice.

Diversionary conferencing offers offenders an alternative to being charged and attending court if they agree to discuss and resolve the offence. Rather than proceed with the formal criminal process, offenders who have acknowledged the offence are required to meet with their victims in the presence of family and community members or significant peers. The process is designed to produce an apology and perhaps some form of material redress.

These often highly emotional meetings take roughly 90 minutes (compared to around 10 minutes for court cases). They usually address issues in this order:

1. what the offender did2. the harm it caused3. the worse harm it could have caused4. ways to repair the harm5. a written agreement between the conference participants, including what the offender will do to

repair the harm.

The three hopes for diversionary conferencing are that:

1. both offenders and victims find conferences to be fairer than court2. there will be less repeat-offending after a conference than after a court intervention3. the public costs of providing a conference are no greater than, and perhaps less than, the costs

of processing offenders in court.

Source: http://www.crimeprevention.gov.au/Informationresources/Documents/Law_and_justice_Module.htm#diversionary (accessed 22/10/2012)

Australian Law Reform CommissionChildren's involvement in criminal justice processes

Diversion

18.35 Diversion is an important aspect of many criminal justice systems throughout the world.[79] Australia is no exception.[80] Young people suspected of offences are increasingly being diverted from formal court adjudication through mechanisms such as cautioning and family group conferences.

18.36 Diversionary mechanisms are intended to avoid the danger of trapping young people with a previously good record in a pattern of offending behaviour. They seek to temper the punitive nature of criminal justice processes in recognition of the particular vulnerabilities of juvenile offenders. For example, cautioning a young person for a minor offence indicates clearly that his or her behaviour is unacceptable. However, it avoids the stigma associated with prosecution and conviction and it avoids contaminating a first minor offender through contact with serious or recidivist offenders.

Diversion of a juvenile offender away from the criminal justice system to community support services is the optimal response to the problem of juvenile crime.[81]

18.37 Diverting young people from the formal legal system may create better opportunities to identify any family, behavioural and health problems contributing to the offending behaviour. It helps to address the causes of unacceptable conduct and not merely the consequences of it.

The main feature of an effective juvenile justice system is that it adopts a minimal interventionist approach at every stage of dealing with young people who come to the attention of justice authorities.[82]

Diversion may also save law enforcement resources.

Conferencing

18.45 Family group conferences are used increasingly in the States and Territories either to divert young offenders from the courts or as a sentencing option.[103] Conferences are a type of restorative justice — a means for the offender to accept responsibility and make amends to the victim.

Value of conferencing

18.51 Diversionary schemes have many benefits. The child usually avoids a formal conviction and is given a 'second chance'. The formality of the court system may be particularly alienating to children whereas diversionary programs tend to be informal and therefore less intimidating. The schemes advance the rehabilitative aspect of juvenile justice, encouraging children to take responsibility for their actions and learn from their mistakes. One great advantage is the capacity for the child to participate meaningfully in the proceedings in keeping with article 12 of CROC.

18.52 Despite these apparently positive elements, all of the models of family group conferencing used throughout Australia have been the subject of criticism. Particular concerns include the extent of police involvement, the child's lack of access to legal advice, the severity of penalties imposed and a perceived net-widening effect.[119] Where a large number of people participate in a conference it may well be as intimidating for the child as a court room. Conferences are particularly problematic for offenders who have poor verbal skills or no family support.

Source: http://www.alrc.gov.au/publications/18-childrens-involvement-criminal-justice-processes/diversion (accessed 22/10/2012)

What are Conferences?Although there is considerable jurisdictional variation conferences take the following form when used as a diversion from court prosecution. A young person (who has admitted to the offence), his or her supporters (often a parent or guardian), the victim, his or her supporters, a police officer, and conference convenor come together to discuss the offence and its impact. Ideally, the discussion takes place in a context of compassion and understanding, as opposed to the more adversarial and stigmatising environment associated with the youth court. Young people are given the opportunity to talk about the circumstances associated with the offence and why they became involved in it. The young person’s parents or supporters discuss how the offence has affected them, as does the victim, who may want to ask the offender “why me?” and who may seek reassurances that the behaviour will not happen again. The police officer may provide offence details and discuss the consequences of future offending. After a discussion of the offence and its impact, the conference moves to a discussion of the outcome (or agreement or undertaking) that the young offender is expected to complete. The sanctions or reparations that are part of agreements include verbal and written apologies, paying some form of

monetary compensation, working for the victim or doing other community work, and attending counselling sessions, among others.

Source: http://www.aic.gov.au/documents/5/3/D/%7B53D95879-0B21-40BC-B716-3DACF695FA3B%7Dti186.pdf (accessed 22/10/2012)

Circle sentencing

Circle Sentencing is an alternative sentencing court for adult Aboriginal offenders. The Circle has the full sentencing powers of the court.

It directly involves local Aboriginal people in the process of sentencing offenders, with the key aims of making it a more meaningful experience for the offender and improving the Aboriginal community’s confidence in the criminal justice system.

Originally developed and implemented by the Aboriginal Justice Advisory Council, Circle Sentencing is now managed by the Crime Prevention Division of the Attorney General’s Department of New South Wales.

Program DescriptionCircle Sentencing takes the sentencing process out of its traditional court setting and into the community. Here, community members and the Magistrate sit in a circle to discuss the offence and the offender. The Circle also talks about the background and effects of the offence and develops a sentence that is tailored for that offender.

Circle Sentencing can involve victims of offences, respected community people and the offender’s family.It allows greater Aboriginal involvement in the criminal justice process, particularly at the community level, and aims to increase Aboriginal satisfaction with the operations of the criminal justice system.

Circle Sentencing complements existing diversionary schemes and provides a further sentencing format for NSW Magistrates.

As set out in the Criminal Procedure Amendment (Circle Sentencing Program) Regulation 2005, Circle Sentencing aims to:

- establish a sentencing format which allows for Aboriginal community involvement- provide support to Aboriginal victims of crime- establish a sentencing format which allows for Aboriginal community control- empower Aboriginal communities in the sentencing process- increase Aboriginal community confidence in the sentencing process- reduce barriers between Aboriginal communities and courts- provide more appropriate sentencing options for Aboriginal offenders- provide effective support to Aboriginal defendants when completing sentences- reduce offending in Aboriginal communities.

www.lawlink.nsw.gov.au/.../%24file/CircleSentencingFactsheetNov05.doc (accessed 22/10/2012)

Circle Sentencing Evaluation

Release Date: Wednesday, 16 July 2008

Circle sentencing does not reduce the risk of re-offending by Aboriginal offenders, a new report by the NSW Bureau of Crime Statistics and Research has found.

Circle sentencing is an alternative method of sentencing Aboriginal offenders that involves the offender’s community in the sentencing process.

The Bureau study examined three issues:

Whether circle sentencing reduces the frequency of offending Whether circle sentencing increases the time between offences Whether circle sentencing reduces the seriousness of any further offending

Circle sentencing participants were found to offend less frequently in the 15 months following their circle sentence than in the 15 months prior to the circle sentence. However the same was found to be true of a matched control group of Aboriginal offenders dealt with in a normal court proceeding.

After adjustment for various factors (e.g. offence, prior record, number of concurrent offences), no difference in time to the next offence was found between Aboriginal offenders who were circle sentence and a control group who were not circle sentenced.

Finally, no difference was found between circle sentence participants and a control group of Aboriginal offenders in the proportion whose next offence was less serious than their index offence (viz the one that led to the circle sentence or previous conviction).

Commenting on the findings, the Director of the Bureau, Dr Don Weatherburn, said Circle Sentencing should be strengthened rather than abandoned.

“Giving Aboriginal Elders direct involvement in the sentencing of Aboriginal offenders encourages offenders to critically reflect upon their behaviour.”

“Personal reflection on its own, however, is not enough to reduce the risk of re-offending. Offenders also need to be given opportunities to address the factors that get them involved in crime, particularly drug and alcohol abuse.”

http://www.lawlink.nsw.gov.au/lawlink/bocsar/ll_bocsar.nsf/pages/bocsar_mr_cjb115 (accessed 22/10/2012)

Circle sentencing expanded in NSWSeptember 30, 2010 www.smh.com.au (accessed 22/10/2012)

A radical justice scheme that brings indigenous offenders face to face with their victims and allows Aboriginal elders to help decide sentences is being expanded across NSW. The state government will on Thursday announce the rollout of Circle Sentencing to regional centres Moree, Ulladulla, Wellington and Coonamble, and the western Sydney suburb of Blacktown.

The expansion is in response to requests by Aboriginal community justice groups following a series of forums held late last year to discuss criminal and civil justice issues.

In all circle courts, the offender, their peers, the magistrate, victim and Aboriginal elders sit in a circle for a hearing to determine a rehabilitation plan and provide advice on sentencing. The method has proven effective in the ten NSW locations where it currently operates, with more than 500 circle sentences being held in the past five years and 70 this year alone.

Since being evaluated in 2008 by the Cultural and Indigenous Research Centre Australia the program has undergone a number of improvements, including intervention plans which help offenders tackle their behaviour.

It also enhances the long-term effectiveness of the program in addressing recidivism, NSW Attorney General John Hatzistergos said.

"Circle Sentencing has been identified as an extremely important program by Aboriginal Community Justice Groups because it breaks down barriers between the justice system and Aboriginal communities," Mr Hatzistergos said.

"It takes suitable offenders out of the traditional courtroom setting and into the community ... and directly connects Elders to justice outcomes."

Mount Druitt Circle Sentencing project officer and Indigenous community member Maree Jennings says the benefits are far-reaching.

"This program makes offenders accountable to their community and face the consequences of their crime," she said.

"I have seen first-hand how this program establishes a relationship between offenders and Aboriginal elders so that they are linked back to the community and programs that can help them."

Circle sentencing is currently underway in Nowra, Dubbo, Walgett, Brewarrina, Bourke, Lismore, Armidale, Kempsey, Nambucca and Mount Druitt. The new circles will begin operating within the next three months.