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Whither Goeth the
Law - Humanity or Barbarity Posted
Sept. 2000. Updated Feb 2007, Dec 2013. In this paper Carlson and Yeomans set
out a history of mediation and first introduce the term ‘lawfare’. This term
has since been picked up and used with a different meaning by people at the
highest level of global governance. This paper by John Carlson and Neville Yeomans was
first published in 1975 in The Way Out - Radical Alternatives in Australia
(eds.) Smith, M. & Crossley, D., 1975. Melbourne: Lansdowne Press. In the analysis of any viable social entity, two
complementary systems must be distinguished1.
Firstly, there must be an integrative mechanism (yin) which maintains the
existence and stability collectivity as a separate entity. Secondly, given
this integrality2, there must be a second mechanism
(yang) for interacting with the environment. Following Tönnies' contrast of
community (gemeinsschaft) with society (gesellschaft), Parsons3 and others have described the integrative (expressive)
system and the instrumental (rational) system. If in fact these two major systems exist within a
social or cultural order then one would expect to find their appropriate
normative structures present: i.e. integrative or community law, and
instrumental or societal law. Likewise, the appropriate conflict-solving
social institutions will have differentiated to carrying these normative
systems. In the West, Church and State may be seen as sustaining these two
sets of norms; in China and other Asian nations, community organisations may
be differentiated from the Imperial Court; yin and yang. Community Law and Societal Law Community law is concerned with harmony, peace and
love; societal law with justice and rationality. In the former, persons are
treated as subjects, in the latter as objects. In the former, the aim is
humanitarian, flexible and intuitive, in the latter utilitarian, certain and
logical. In the former, sympathetic humanity, virtue and decency court; in
the latter reasonableness, efficiency and legitimate self interest. In China
and Korea the former was the Confucian code of propriety, the li,
guided by the Tao or Way. The latter was the fa, similar to the
Common Law of the English Crown. The person who behaved decently only through
fear of punishment was uncivilised and 'typified, barbaric subhumanness' 4; while he who uncompromisingly pursued his legal rights
was callous and lacked virtue. It is possible to suggest a spectrum of norms (laws) in
the solution of disputes, as follows:
Humanitarian law is thus concerned with the norms of
community, of mediation, family relations, health-welfare, education and
culture. Until the Industrial Revolution, it was the Canon Law administered
by the Church and the ecclesiastical courts. The confessional, forgiveness,
peace and the law of sanctuary and protection were part of humane justice and
law. Utilitarian law is the law of the State, of order, of
business, of war, contract and crime - the law of ruthlessness, retribution
and punishment. In the last 200 years, this law has uniquely dominated the
Western world. It has swallowed the humane justice of humanitarian law,
creating State monopolisation of law-making. Thus the inquisitorial or enquiry technique is gone,
the adversary or accusatory procedure alone applies in our courts. The search
for truth is replaced by the classification of issues and the refinement of combat.
Lawfare replaces warfare and the duel is with words rather than swords. But
is that enough? The Origins of Mediation Fortunately, very recently there has been a growing
awareness of the need for humanity in Western Law. Thus mediated harmony and humane
justice are beginning to be considered. In mediation5,
a third party guides consensual dispute resolution by mutual compromise and
cooperation rather than imposed decision. It is private rather than public,
persuasive rather than coercive, democratic rather than autocratic. The
mediator is concerned with the common well-being and human dignity of the
parties, not with rewarding one and punishing the other. Integration rather
than vindication is the result. The parties make the agreement, the mediator
makes it legally binding by his signature as witness. Hahm points out that it is such 'factors as ethical
integrity and virtuous example that are relevant in the decision making. . .
by means of which the whole community enforces its standards of propriety and
decency by making its standards tangible through the compromises reached by
the mediator and the disputants themselves 6.
As Hahm says: 'According to the modern Occidental myth.
it is highly desirable to settle litigation'. Yet mediated settlement is
almost unknown in the West7. With this goes a marked ethnocentricity linking
formalised rationality with modernity, and compromise with pre-literate
societies8. The marked right-consciousness of
westerners leads to a distrust of human judgment, and a demand for abstract
absolutes9. The evolution of trial by ordeal to
trial by jury was based on the 'background of ancient courts with their
unprofessional judges, their formal, supernatural modes of proof' to elicit
the judgment of God10. Similarly, the ordeal of trial by
battle was used 11. Gradually the jury system grew,
with jurors as representatives of the community, the defendant putting
himself 'upon the country for good or ill'12.
As a newer sort of ordeal (to quote Plucknett) 'the jury states a simple
verdict of guilty or not guilty, and the court accepts it as unquestioningly
as it used to accept the pronouncements of the hot iron or cold water'. In complete contrast to this is the traditional Chinese
idea of law: 'there was no concept of a conclusion which, being reached
through fixed rules of procedure, was to be regarded as the best substitute
for the absolute truth and justice of God... The notable lack of magical
factors such as ordeal in the courts of imperial China, and lack of strict
formalistic rules of procedure as well, can also be explained by the fact
that the judge was not a servant of a mechanism aimed at objective truth
beyond personal wisdom but was a representative of an almighty and merciful
government which held the mandate of heaven to realise harmony in his world.'13 This idea was conditioned by Confucian values, which
emphasised not the rights of the individual, but the functioning of the
social order, the maintenance of the group14.
Emphasis was placed on duty, rather than on right. (Here is a coincidence
with the traditional Indian view, that there should be a conscious
maintenance of a self-disciplined, harmonious society15.
Similarly, African adjudication is concerned with reconciliation and the
restoration of harmony within the disturbed community16.
'The aim of the judicial process is that when the parties have had their
rightdoings and wrongdoings indicated to them, they will be reconciled and
live together harmoniously in the future'17.)
To return to Confucionists, law was backed by coercion,
and was therefore a necessity to be deeply regretted. A lawsuit symbolised
disruption of the natural harmony thought to exist in human affairs.
Furthermore, litigation led to concern for one's own selfish interests to the
detriment of the interests of society. Once social harmony had been disturbed
it could best be restored through compromise. 'To take advantage of one's
position, to invoke one's 'rights', has always been looked at askance in
China. The great art is to give way on certain points, and thus accumulate an
invisible fund of merit whereby one can later obtain advantages in other
directions.' It was thought most disputes would be best resolved, not by
coercion, but by moral persuasion: thus the Chinese tradition valued highly
the art of compromise and the role of the persuasive intermediary. In addition to the desire for harmony, there were other
factors influencing the Confucian idea of law. One was the realisation that,
as law is applied by men, its effectiveness is entirely dependent on the
policies and actions of the power wielders. 'There is a ruling man but not a
ruling regulation. . . Law cannot stand alone and regulation cannot be
exercised by itself.'18 Another factor was the lack of
emphasis given to objective reality. It was recognised that sense experiences
vary from one perceiver to another, and from one moment to another. Hence the
concept of universal reality existing independently of those perceiving it
could not be accepted. If facts were not universal, but varied with observer
and time, then neither could rules, abstractions based upon and applicable to
facts, have a universal nature. From this viewpoint, litigation, with laws of
identical content and meaning to all persons and situations, is a meaningless
notion19. Confucian attitudes had a profound effect on the
development of the judicial system. The magistrates did not apply universal
laws, but sought to induce both parties (sometimes under threat of
punishment) to accept some mutually satisfactory settlement. Moreover, the
very nature of these attitudes ensured that most disputes were resolved
outside the judicial system; maintenance of social order and settlement of
disputes depended, in the main, on informal mediation by local groups such as
the clan, the guild, and the village. Popular preference for extra-judicial
settlement was strengthened by the official discouragement of litigation.
Good subjects, it was felt, would settle any difficulties between them 'like
brothers' by referring them to an elder or the head of their community : 'for
those who are troublesome, obstinate, and quarrelsome, let them be ruined in
the lawcourts - that is the justice that is due to them.' One statement of
imperial policy was as follows: 'lawsuits would tend to increase to a
frightful amount, if people were not afraid of the tribunals, and if they
felt confident of always finding in them ready and perfect justice. As man is
apt to delude himself concerning his own interest, contests would then be
interminable, and the half of the Empire would not suffice to settle the
lawsuits of the other half. . . those who have recourse to the tribunals
should be treated without any pity, and in such a manner that they shall be
disgusted with law, and tremble to appear before a magistrate.' This policy
was effected partly by deliberate humiliation and ill-treatment of litigants.
The main deterrents, however, were expense, delay, and uncertainty of
outcome. Popular attitudes found expression in such proverbs as 'win your
lawsuit and lose your money' and 'let householders avoid litigation: for once
go to law and there is nothing but trouble.'20
'Informal mediation might in practice begin by one of
the parties to a dispute calling on a third person, either in virtue of
friendship, or other personal relationship, or because he had served as
middleman or witness in the transaction which had given rise to the
difficulty, to try to persuade the other party to fulfill his obligations.
Or, a third person, knowing of an incipient quarrel, might offer his services
as mediator, in the hope of winning some return for his help, or because he
felt some duty to keep kinsman or friend out of trouble'. 21
Mediation remained the usual method of dispute
settlement into the present century, and has continued in its traditional
form in Taiwan22. Apparently it has also been
adopted by the Communist Government: Cohen quotes a Communist slogan,
'mediation is the main thing, adjudication is secondary.'23
There is little information available on the origins of
mediation in Japan. Chinese thought must have profoundly influenced law, as
it did so many other aspects of Japanese life: this would have been
especially so since Confucionist philosophers came to occupy positions of
considerable significance to legal development. Japanese concepts of justice
emphasised duties, not rights. Group interests were accorded high moral
approval, whereas notions of individual interests were considered morally
illegitimate. These ideas found expression in official pressure to settle
disputes out of court. Other factors contributing to the popularity of
mediation included the delays and expense of litigation. From the seventeenth
century mediation became compulsory for many issues, and it became the
dominant mode of dispute settlement in civil cases. However, as Henderson
points out, long before this time mediation as a social process had grown
strong roots in the rural community.24 Japanese
practice resembled that of China, in that most disputes were settled by
informal mediation by village headmen and other local notables, and for those
cases which did reach the courts mediation was the usual procedure. Practices
of earlier periods developed into the modern system of mediation which will
be discussed in the next part of the article. Mediation in Contemporary Legal Systems Most legal systems have some provision for mediation in
one form another as an ancillary to litigation proceedings. In our own legal
system there is the practice of settlement out of court. In the United States
settlement negotiations are facilitated by the pre-trial procedure, by which
parties are called before the judge prior to the trial in order to clarify
matters in dispute. Mediation plays roles of varying importance in civil
law systems: here, the immediate historical precedent is to be found in
innovations introduced during the French Revolution. In 1790 the French
Constituent Assembly created bureaux de paix and ordered that parties
to a dispute were bound to appear before one of these bureaux in order
to exhaust the possibilities of mediation before instituting court action.
Failure to exhaust this remedy excluded the possibility of court proceedings,
and even made the parties liable to monetary sanctions. Subsequently, obligatory mediation was severely
restricted, but the idea was adopted by other countries. In France today a
preliminary attempt at conciliation is obligatory in all civil cases of a
minor nature. In Italy, all judges are required to make an attempt at
conciliation during litigation proceedings. In Denmark, the communal council
for each district elects a general conciliation commission, consisting of two
members (who must not be judges or advocates). In principle, whenever a
dispute of private law character has risen, parties are required to appear before
the commission in order to attempt a compromise. If the parties do not
appear, the case proceeds to court. If the complainant appeared but the
defendant did not, the latter will be fined in final judgment. Swiss communes
elect justices of the peace to handle minor civil litigation and to act as
mediation officers. Mediation proceedings have substantially reduced the
volume of litigation. Mediation is not wide-spread in Germany, but in some
states local traditions are maintained : each commune elects a mediator for a
three-year term. The task of the mediator is to facilitate a friendly
compromise in all disputes concerning property25.
In Sweden, mediation between the parties has been
declared an express object of the initial phase of litigation. The relevant
legislative pronouncement provides that 'when it is found appropriate, the
court should attempt to conciliate .the parties during preparation.' Further,
if 'special mediation' appears desirable, the court may appoint a mediator
and call upon the parties to meet with him to explore possible bases of
settlement. If it appears that the parties are not receptive to conciliation,
the attempt must be abandoned. It settlement is effected, whether during
preparation or at a later stage in the proceedings, the parties may jointly
request the entry of judgment in accordance with their agreement. The court
must enter the requested judgment unless it embraces relief of a different or
more extensive character than that initially sought by the parties before the
court26. These procedures are either limited in scope, or form
part of the litigious process. Thus prior attempts at mediation are a
prerequisite to a lawsuit, or mediation is available at the option of the parties
or the judge before filing suit or after suit has been instituted. In most of
these procedures mediation is made the sole responsibility of the judge.
Norway and Japan, on the other hand, have extensive voluntary systems of
mediation, involving the participation of laymen, and operating independently
of the litigious process. Mediation was introduced into Norway by Royal Decrees
of 1795 and 1797: these were modelled on the French Constituent Assembly
enactment of 1790. The Decrees provided that before civil actions and
criminal cases concerning defamation and bodily harm, instigated by private
persons, could be brought before the court, a settlement by way of mediation
by a special local authority, the Conciliation Council, must be attempted27. The present position is that, as a general rule, no
civil case can be brought before a court unless an attempt has been made to
settle the dispute by way of mediation. Exceptions to this rule include
matrimonial cases, for which there are special mediation provisions, and
actions against the State. Mediation is carried out by the Conciliation
Council, which is composed of three members elected by the rural or town
council for a period of four years. Each municipality has at least one Conciliation
Council; larger municipalities may be divided into several different
conciliation council jurisdictions. Barristers and certain States officials,
including judges, are not eligible for election, and conciliators are nearly
always non-lawyers. Conciliators receive no salary, but are paid a small fee
for the handling of each case. The complainant commences mediation proceedings by
filing a summons with the Conciliation Council, usually at the place where
the other party is domiciled. This summons states the subject matter of the
dispute. The chairman of the Conciliation Council then summons the parties to
a sitting of the Council. Under no circumstances can a party be represented
or accompanied by a barrister. If the Conciliation Council succeeds in bringing
about a settlement between the parties, a formal agreement, which has the
same effect as a final judgment, is entered into and recorded in the official
records of the Conciliation Council. If the parties fail to agree, the
dispute will usually be referred to court for trial. However, the
Conciliation Council may pronounce judgment in any case where both parties
appear and request the Council to settle the dispute. In addition, the
Council may, in limited cases, pronounce judgment at the request of one party
only. In practice this discretion is generally restricted to small debts
cases where the defendant fails to appear28.
The Conciliation Councils successfully resolve a substantial majority of
disputes (seventy-four per cent of all disputes in 1961, as against
twenty-six per cent determined by the various courts). Japanese mediation is of special interest in that it
operates in the context of a substantially European legal system: during the
late nineteenth century the entire system was reconstructed, mainly along
German lines. However, Japanese values and traditions have survived to give
this European-based system a uniquely Japanese character29.
The process of traditional informal mediation persists in Japan today as a
social practice outside of the courts, unfettered by technicalities and
conducted in much the same way as it was centuries earlier. Relatives, employers and village officials maintain
their traditional importance as informal mediators, and lawyers and police
officers are playing an increasingly significant role. In surveys cited by
Henderson, eighty per cent of respondents indicated that they would prefer
informal mediation, and only twenty per cent preferred direct recourse to court
action. Under formal legal procedures there are two methods of
mediation, each of which is completely voluntary. The most important for the
purpose of this article is chotei, a primarily pre-litigation
procedure conducted in the regular courts by a three-man mediation committee
appointed for each case and composed of two laymen and a judge. These
proceedings may be commenced by either disputant, and they may be
discontinued and litigation begun at any stage. The other method of mediation
is compromise: a judge may try to obtain a compromise between the parties at
any stage of a trial. The chotei procedure is laid down in the Civil
Mediation Law of 1951, the purpose of which is 'to devise, by mutual
concessions of the parties, solutions for disputes concerning civil matters,
which are consistent with reason and benefitting actual circumstances.' When
a civil dispute arises, a party may apply to the court for mediation.
Generally mediation will be under the jurisdiction of the summary court which
has jurisdiction over the defendant's residence or place of work, unless
otherwise agreed by the parties. Mediation is conducted by a mediation
committee composed of one chairman and two or more members. The chairman is
designated by the district court from among its judges. The chairman then
selects the committee members from persons nominated beforehand each year by
the district court and persons designated by mutual agreement of the parties.
Committee members are paid expenses and a daily fee. The committee may require
the appearance of any persons who can assist or have an interest in the
mediation proceedings. When agreement is reached between the parties, it has
the same effect as final judgment. If agreement cannot be reached, mediation
proceedings are terminated. In such circumstances, the court may render a
decision necessary to settle the dispute. The parties may protest within two
weeks of the decision, in which case the decision loses its effectiveness.
Otherwise the decision will take effect as a final judgment. Chotei proceedings usually take place in a small room in the
court building, with the committee and parties seated about informally. The
meetings are not public, and penalties are provided against disclosure by
committee members of information elicited at the proceedings. Generally the
parties appear in person, and they may be accompanied by a lawyer. The
chairman (a judge) opens the meetings by introducing all persons present. He
explains the spirit and purpose of chotei proceedings and emphasises
the difference between chotei and law suit. The committee members are
instructed to remain fair and unbiased, and to hold in confidence all
information disclosed during the proceedings. Then the parties state their
cases and are questioned by the committee. When this is finished, the parties
are dismissed and the committee considers its course of action. Subsequent
hearings are held, during which the parties are persuaded to make concessions
to each other with a view to reaching a mutually agreeable solution. If
agreement is reached, it is regarded as a protocol of the court, and can be
enforced as a final judgment. The committee must ensure that the agreement is
thoroughly understood and acknowledged, and that it is embodied in written
form sufficiently clear to avoid misinterpretation, and precise enough to
enable specific enforcement by the court should this become necessary. The Japanese government is especially concerned to
educate mediators in the purpose and technique of chotei: the
government sponsors the mediators' association, lectures, and meetings. Many
citizens are anxious to serve as mediators, especially because of the
prestige involved. Of the formal dispute-settlement procedures,
considerably more cases are settled by way of chotei and court
compromise than by litigation: for cases disposed of by courts of first
instance during 1959, sixty-one per cent were settled by mediation
procedures, as against thirty-nine per cent settled by litigation. A major practical problem is caused by the involvement
of judges. Because of overwork, the judges who are appointed as chairmen of chotei
committees usually attend only the first and last meetings. Hence the
committee is deprived of the legal expertise of the judge. This problem is
similar to that existing, for example, in Italy : the burden of proceedings
entrusted to any one judge prevents him, in the majority of cases, from
effectively participating in the process of conciliating the parties. Henderson concludes that mediation must be voluntary -
'in a modern legal order compulsory chotei is not only an
inconsistency in terms, but a denial of the constitutional right of public
trial.' However, Norwegian experience shows that, provided there is the right
of appeal to the courts, compulsory mediation can work most effectively for
all persons concerned. Mediation in Australia Australia has no formal mediation procedures. However,
there exists a very widespread practice of settling disputes out of court.
The disputants attempt to reach mutually acceptable compromises, usually by
negotiation through their legal advisers. In 1964, out of all cases set down
for trial in the Common Law jurisdiction of the Supreme Court of New South
Wales, only 15·8 per cent (459 of 2,895) actually proceeded to trial: the remaining
84·2 per cent (2,436 cases) were settled or abandoned. In the same year
11,988 cases were originated in this jurisdiction. While many of these claims
would subsequently have been abandoned, it must be assumed that many others
were settled before setting down for trial30.
The high rate of settlement indicates a general
dissatisfaction with the litigation process. Reasons for the popularity of
settlement are not hard to find. Some are mentioned by Lord Denning:
'solicitors do not advise their clients to litigate. They make no profit out
of it. It is too poorly paid. They point out to the client the risk of losing
the case. So more and more cases are settled'. Other causes of
dissatisfaction with litigation are delay and expense. Average delay between
setting down and hearing in the New South Wales Supreme Court's Common Law
jurisdiction was, in 1965, twenty-four months, and in 1970 twelve months.
This delay is often increased by the involvement of judges in lengthy trials
elsewhere, for example, in the Court of Criminal Appeal. In the Equity
jurisdiction, delay was sixteen months in 1968, and in 1970 six months. The
delay is also subject to increase when lengthy trials occupy the Court's
time. The delay in the District Courts in 1970 was five months31.
Unfortunately, during the preparation of this article there was no
opportunity to investigate litigation expenses. However, it is valid to
assume that these exceed settlement expenses, and the latter, as will be
seen, are extremely high. In considering litigation in the English Courts,
the British Section of the International Commission of Jurists concluded that
'a system which is so costly as to drive the great majority of the litigants
who wish to make use of it into settlement must be at risk for its future'32 Indeed, the system of litigation in New South Wales
seems to be in an extremely precarious state. Present delays may at times be
aggravated by one or two complicated hearings. Furthermore, these delays are
the best the courts can do in the context of a high rate of unmediated
settlement out of court. Should the rate of settlement diminish substantially
it is doubtful whether the courts could cope with the increased workload. The
efficient functioning of the Supreme Court is dependent to an alarming degree
on the cooperation of one organisation, the Government Insurance Office. This
office handles most of the State's motor accident third party claims. In his
Report for the year ended 30th June 1966, the General Manager of the G.I.O.
said that 'it is common knowledge that the Court could not, except over a
long period of years, dispose of all cases listed by hearing the issues to
verdict or judgment. As litigation involving this Office represents more than
fifty per cent of the work of the Common Law jurisdiction of the Supreme
Court it is apparent that the policy of the Office as to settlement or
contest will have a marked effect on the rate of disposal of matters and will
largely determine whether the lists are likely to be reasonably up-to-date or
bogged down with substantial arrears33. For the
year ended 30th June,1969, it was reported that over ninety per cent of
claims were disposed of without Court hearing, and the balance, less than ten
per cent then represented some sixty per cent of the work of the Supreme
Court's Common Law jurisdiction34 The Common Law situation could be improved by removing
motor accident cases from the courts: there are most persuasive arguments,
which need not be discussed here, for resolving these claims by other means.
However, the advantages of such a move would effect only the Common Law
jurisdiction, and might be more than off-set by a system of legal aid, such
as that now proposed by the Law Society, which would enable more people to
engage in litigation. While legal aid may solve the problem of expense - and
British experience suggests that it is very difficult to administer legal aid
effectively35 - it cannot remedy delay. It may
even be, as suggested above, that legal aid, by encouraging litigation, would
aggravate delay. The real problem lies in the extremely formal nature of
litigation, a concept which originated during the time of the ordeal and has
continued largely unchallenged to the present day. Before a system of legal
aid is introduced which will channel further public money into the
maintenance of archaic procedures, there should be a thorough appraisal of
their relevance to modern requirements. At present the alternative to litigation - an
alternative for which there is a marked preference - is settlement out of
court. Generally negotiations are conducted by lawyers after litigious proceedings
have been instituted. Because settlement occurs as an integral part of the
litigious process (or vice versa) it shares the disadvantages of that
process, namely delay and expense. There has been no general research into
these aspects of settlement, and the best source of information seems to be
the Government Insurance Ofhce. It appears reasonable to take Government Insurance
Oflice as indicative of a general trend. Indeed, since it has established
administrative and legal machinery to handle a large volume of settlements
efficiently (and its policy to effect settlement as often as possible is well
known to the legal profession), one would expect the Government Insurance
Office's experience to be more favourable than that of the ordinary citizen.
The General Manager of the Government Insurance Office reports that 'although
in New South Wales about ninety-five per cent of the claims are in fact
disposed of by negotiation without resorting to a hearing in the court, the
fact that the law requires that in the absence of agreement the claims of
injured parties be determined by normal processes in either the District or
the Supreme Court leads to the initiation of costly and cumbersome legal
processes in the course of the negotiation towards settlement'36.
The experience of many legal practitioners, not to mention their clients,
will substantiate the statement that 'in many instances proximity of a
hearing in Court is required to create a climate for settlement'37.
In the context of a ninety-five per cent settlement rate, some fifteen to
twenty per cent of the total amount paid out in motor accident claims is
absorbed by legal costs. Such high costs should be unacceptable for
litigation, let alone for settlement. Another disadvantage of existing settlement procedures
is the dependence of disputants on their legal advisers. Some are led into
drawn-out and expensive negotiations, and even unnecessary court action, by
unscrupulousness or incompetence. Thus, in reporting an abnormally high ratio
of court verdicts to settlements in one year, the Government Insurance Office
commented that 'some forty per cent of the cases which proceeded to verdict
were handled by solicitors whose affairs were then subject to investigation
by the Law Society and who have subsequently been before the Court'38. For most disputants, the outcome depends very much on
their respective bargaining strengths: who can retain the better lawyer, who
can withstand the greatest delay, who can afford to bluff to the point of
court action. There are no impartial standards of negotiation, and there are
no persons whose advice can be respected by all parties. Mediation appears to offer reduced costs and time. In
addition, it provides an opportunity for ordinary citizens, by acting as
mediators, to participate in the administration of justice. Mediation
committees might be established by the Departments of Justice. They could
function under the supervision of such a Department, perhaps with members of
the Department acting as chairman of committees. Committee members could be
selected from public volunteers, and appointed after adequate training. They
would serve on a part-time basis, being paid for expenses only. As far as
possible, committee members would rotate, to ensure the widest possible
participation. The Department could conduct regular lectures, discussion
groups, and refresher training courses. Mediation could be conducted between
the disputants themselves, without the intervention of legal representatives.
A genuine attempt at mediation could be made a pre-condition to institution
of court proceedings. It is not suggested that the courts should be dispensed
with: voluntary mediation depends upon 'an effective legal system to protect
the free bargaining position of the parties and to enforce any agreement
which may be reached, as well as to provide an alternative remedy in case
conciliation fails'. 39 However, the fact is that the
courts now are only incidental to most disputes, and to propose mediation
procedures is only to recognise this fact. There has been opportunity here
merely to touch on potentialities. Mediation experiences throughout the world
should be subjected to detailed investigation, with a view to the possible
establishment in Australia of a most modern system of mediated dispute
resolution. Humanitarian Justice After Failed Mediation Until recently, the concept of humanitarian sentiments
and norms as legally binding has received scant attention from
Anglo-Australian law, or indeed Western law in general. Throughout the
development of Western law, and particularly in the l9th century the standard
of conduct has been the 'reasonable man'. The motives, intentions and
behaviour of the hypothetical reasonable man is the basic criterion of
acceptability and his legitimate self-interest is accorded high respect. The very term itself is of interest in that it
epitomises an ideological preoccupation with reason and rationality - and
with male dominance. Thus reasonableness is a perfect measure for a
machine-oriented society. Yet in human relationships, such a measure can lead to
farcical and tragic results. Thus, in disputes over child custody or
adoption, a court decision must not be humane or compassionate but be a
'reasonable judgement'. Such a criterion of behaviour produces not the
loving, nor the affectionate, nor the humane, but the 'reasonable' parent.
The decision maker must have a 'reasonable mind', making 'reasonable
decisions'. But what happens to the child? Goldstein et. a1. quote the judge
in one such dispute as stating: 'the test is reasonableness. . . two
reasonable parents can perfectly reasonably come to opposite conclusions on
the same set of facts without forfeiting their title to be regarded as
reasonable'. 40 In a Commentary on the Outline of a Course on
International Humanitarian Law the International Committee of the Red
Cross summarised the programme at the University of Geneva, carried out by
Pictet, the Vice-President of the I.C.R.C. It defined its normative sources :
'Humanitarianism' is a universal social philosophy of which the aim is human
welfare. . . 'Humane' describes a person who is actively considerate.
'Humanity' is the quality of kindness and generosity.'41
Pictet, describes humanitarian law as that which 'owes its inspiration to a
feeling for humanity and which is centred on the protection of the
individual.' Again, humanity 'is a sentiment of active goodwill'; and 'the
word humanitarian. It qualifies any action beneficent to men'42. Surely court disputes determining the safety, happiness
and welfare of persons, particularly children, require not a reasonable man
test of conduct, but a humane person test. A child may be trapped in a
custody or other dispute, between two reasonable parents. It seems unlikely
however, that two humane parents, particularly if assisted by a mediator,
could reach totally opposed conclusions without one of them 'forfeiting their
title' to be regarded as humane. The general indifference of the Common Law to
humanitarian norms has, until recently, been 'matched at the international
level by the International Court of Justice. However, since the two Great
Wars, perhaps a peak of man's inhumanity to man in recent centuries, there
has been a re-awakening of humanitarian interest. In the South-West
African cases43 humanitarian norms were extensively
argued as legally binding. The International Court of Justice rejected this.
'Throughout the case it has been suggested. . . that humanitarian
considerations are sufficient in themselves to generate legal rights and
obligations, and the court can and should proceed accordingly. The Court does
not think so.' In this 8/7 split decision a legal attack on South Africa was
rebuffed. Some of the dissenting minority, including Judge Tanaka of Japan,
specifically held that humanitarian interests, rights and obligations were
legally binding. In 1969, the Vienna Convention on the Law of Treaties,
recognised humanitarian agreements. With a change of some of its personnel
and a clear indication of world normative opinion, the Court changed its
mind. In 1970 it drew a distinction between ordinary inter-State agreements
and those which give no rights to States, but give rise to humane duties
towards persons and 'towards the international community as a whole.'44 These duties derive partly from the outlawing of
aggression and genocide 'as well as also from the principles and rules
concerning the basic rights of the human person including protection from
slavery and racial discrimination'.45 The
voting was 12/3. This completely new juristic stance was confirmed46 in 1971. South Africa was declared illegally
administering Nambia (South West Africa). Humanitarian treaties as 'relating
to the protection of the human person' were recognised. For example,
registration of births, marriages, and deaths, were explicitly allowed for.
The Court came up to date with world legal norms. 47
Turning now to recent decisions relevant to Australian
law, a remarkable parallelism of normative trends is seen. Humanitarian law
has reappeared through the relationship of the occupier or controller of land
to the child trespasser. Under normal circumstances, if a trespasser is
injured or killed by an unpredictable accident on the land the occupier is not
liable and damages can't be obtained against him. In many cases private
companies, railways, electricity corporations and others, have denied
responsibility for severe injuries or fatal accidents to child trespassers.
The Courts have begun to increasingly insist on responsibility and a recent
case for the first time imposed a 'humanitarian duty' on the occupier. The
Privy Council in England had an Australian case on Appeal. Was a company
responsible for the electrocution of a child by a 33,000 volt uninsulated
wire, when it had piled waste material to within five feet of that wire? The
Lord Justices felt it 'necessary to re-examine and restate the basis of the
law'. Quoting a passing reference to 'humanity' in 1820, they said : 'Their
Lordships are breaking no new ground in holding that the nature and extent of
(the duty) must be based on considerations of humanity... Such considerations
must be all-embracing. . . The problem then is to determine what would have
been the decision of a humane man'. 48 Thus the test of conduct has rather suddenly changed
from the reasonable man to what 'a conscientious humane man' would do, and
whether it would be 'humane or decent for him to do nothing'49.
His conduct must not be 'contrary to the principles of humanity' or
'inhuman', but be based on 'humanitarian impulses. . . to uphold humanity'.
Such behaviour must be under 'the guidance of common humanity' and be what
'an ordinarily humane man' of 'ordinary humane feelings' would feel obliged
to do. Such words from the Lords of the Privy Council state the law and bind
Australian courts - that is why they are quoted. A new criterion of conduct has entered both World Law
and Anglo-Australian law within three years of each other; and after over 150
years of reasonable inhumanity and state monopoly of law-creation. For the
law this is truly revolutionary. How far these humane concepts will be
extended and whether they will link up with the harmonising practices of
mediational law, awaits the efforts of the consumers of law, human and humane
beings. ___________________________________ Modified and extended by Neville Yeomans from John
Carlson's article on mediation. (see footnote No. 5). References 1 Clark A. W. & Yeomans N.T.,
1969. Fraser House: Theory, Practice & Evaluation of a Therapeutic
Community New York: Springer Publishing Co. 2 Reid, J. P., 1970. A Law of
Blood: The Primitive Law of the Cherokee Nation p.3. 3 Parsons, T., 1959. The Social
System. 4 Starke, J. K., 1968. An
Introduction to the Science of Peace. p.68-68. 5 Carlson, J., 1971. Mediation as
an Alternative to Litigation Sydney: Children's Aid Movement of Australia.
6 Hahm, P.C., 1969 The Decision
Process in Korea. Chapter 2 in Schubert & Danelski Comparative
Judicial Behaviour Oxford U.P. 7 Lord Denning in Paulsen, M.G.,
1959. Legal Institutions Today and Tomorrow Columbia: U.P., p. 252. 8 Biglia C. & Spinosa L.P.Z.,
1958 The Function of Conciliation in Civil Procedure International
Social Science Bulletin Vol. X, No. 4, p. 604. 9 Rheinstein, M. (ed.), 1954. Max
Weber on Law in Economy and Society Harvard: U.P., pp. 254 - 256,
351-352. 10 Hamson C.J. & Plucknett
T.F.T., 1952. The English Trial and Comparative Law: Five Broadcast Talks
(Heffer,) pp.15-16. Sir William Holdsworth, A History of English Law
7th Ed. (London, 1956), Vol. l, p. 320. F. W. Maitland, The Forms of
Action at Common Law (Cambridge U.P.,1956), p. I6. Sir Frederick Pollock
and F. W. Maitland, The History of English Law 2nd Ed. (Cambridge
U.P., 1968), Vol. 1, p. 74. 11 Plucknett T.F.T., 1956 A
Concise History of the Common Law 5th Ed. (London,), pp. 114-125. On
ordeals generally see 'Mechanical-Magical Modes of Trial' in S.P.
Simpson and J. Stone, Cases and Readings on Law and Society (West,1948),
Vol.1, pp. 298-312. 12 Maitland, F.W. 1965 Constitutional
History of England Cambridge: U.P., p.112. 13 Shiga S. Some Remarks on the
Judicial System in China: Historical Development and Characteristics in
D.C. Buxbaum (ed.), 1967 Traditional and Modern Legal Institutions in Asia
and Africa (Brill,), p. 48. 14 Cohen J.A. Chinese Mediation
on the Eve of Modernisation In Buxbaum (ed.), op. cit., p. 59-76. 15 Derrett, J.D.M.(ed.) 'Hindu
Law' in An Introduction to Legal Systems (Sweet and Maxwell, 1968), pp.
96-97. U. Baxi, The Little Done, The Vast Undone Journal of the Indian
Law Institute, Vol. 9, No. 3, (July-Sept.,1967 pp. 418-419. G.S. Sharma,
1967. Changing Perceptions of Law in India Jaipur Law Journal, Vol, 7,
pp. 8-9. 16 Allott A.N. African Law in
Derrett ed. op. cit., pp. 145-148. 17 Gluckman, M. 1955 The Judicial
Process Among the Barotse of Northern Rhodesia Manchester: U.P., p. 49. 18 International Commission of
Jurists, The Dynamic Aspects of the Rule of Law in the Modern Age
(1965), p. 31. 19 Northrop, F.S.C., 1963-1964. The
Epistemology of Legal Judgements Northwestern University Law Review Vol.
58., pp. 732-749. The Way of Zen (Penguin,1962) pp. 23-48. 21 Van der Sprenkel Legal
Institutions in Manchu China quoted in Cohen op. cit., p. 67. 22 Gallin, B. Mediation in
Changing Chinese Society in Rural Taiwan, in Buxbaum (ed.), op. cit., pp.
77-90. 23 Cohen, op. cit., pp. 54-59,
73-76: See also Shiga, op. cit., pp. 52-53. 24 Henderson, D.F., 1965. Conciliation
and Japanese Law, Tokugawa and Modern Washington: U.P. 25 Biglia and Spinosa, op. cit., pp.
604-616; H. Toussaint, Conciliation Proceedings in the Federal Republic of
Germany, Switzerland, Austria, Scandinavia, England and the United States
International Social Science Bulletin Vol. X, No. 4, (1958), pp. 616-625;
Henderson op. cit., Vol. II pp. 251-253. 26 Ginsburg, R.B. and Bruzelius, A.
Civil Procedure in Sweden (Nijhoff,1965), pp. 253-254. 27 Royal Norwegian Ministry of
Justice, Administration of Justice in Norway ( 1957), p. 20. 28 Roya1 Norwegian Ministry of
Justice, op. cit. , pp. 28-3l; L.B. Orfield The Growth of
Scandinavian Law (Temple University, 1953), p.185. 29 Von Mehren A.T. (ed. 1963. Law
in Japan: The Legal Order in a Changing Society Harvard: U.P., pp.
36-40,188-191. 30 N.S.W. Official Yearbook
(1966), p. 370. 31 As advised by an Under-Secretary
of the N.S.W. Attorney-General's Department, June 1970. See also, The Law
Society, of N.S.W. Annual Report 1968-69, p.11. 32 Justice, British Section of the
International Commission of Jurists, Trial of Motor Accident Cases
(Stevens,1966), p. 5. 33 Report of the Government
Insurance Office of N.S.W. for the Year Ended 30.6./966, p. 7. 34 G.I.O. Report for the Year
Ended 30.6.1969, p. 10. 35 B. Abel-Smith and R. Stevens Lawyers
and the Courts (Heinemann,1967). pp. 331-333, 338-348. 36 G.I.O. Report for the Year
Ended 30.6.1968, p. 9. 37 G.I.O. Report for the Year
Ended 30.6.1965, p. 7. 38 G.I.O. Report for the Year Ended
30.6.1966, p. 7. 39 Henderson, op cit. , Vol.
1, p.5. 40 Goldstein, J., Freud, A. &
Solnit, A., 1973. Beyond the Best Interest of the Child Free Press
Paperback, pp. 43, 54-60, 141. 41 I.C.R.C. Geneva, 1971, p.3. 42 Pictet, J., 1966. The Principles
of International Humanitarian Law Geneva : ICRC, p. 9, p.14, p.15. 43 Second Phase (1966) I.C.J. Rep.
6. 44 Barcelona Traction Case
(2nd Phase) (1970) I.C.J. Rep. 3 at 32. 45 I. Brownlie, Principles of
International Law, (Oxford U.P.,1973) p. 500. 46
Namibia Case (1971) I.C.J. Rep.16. 47
U. Umozurike Self determination in International Law (1972),
postscript. 48
South Portland Cement Ltd. v. Cooper (1973) 47, A.L.J.R. 790. 49
British Railway Board v. Herrington (1972) 2. W.L.R. 537. On Global
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