Thank you for inviting me to speak at this dinner and to participate in the presentation of the Dispute Resolution Awards.
Alternative dispute resolution has come a long way in the last 30 years. The term is now something of an anachronism. What used to be ‘alternative’ is mainstream.
As a Judge of the Federal Court in 1990 I was interested in the use of court-annexed mediation as a way of encouraging more and earlier settlements or at least narrowing the issues in dispute. I was interested also in the use of serving judges as mediators in proceedings in the Court on the basis that a mediating judge would not have anything to do with hearing the case if mediation did not effect a settlement.
The legal profession at the time was sceptical about alternative dispute resolution in general and mediation in particular. There was also considerable controversy about the use of serving judges as mediators. There was, however, political support for increasing judicial involvement in alternative dispute resolution (ADR) in connection with pending court proceedings. In 1990, I was sent to the United States by the Federal Court to participate in the Harvard Negotiation Course run by Professor Roger Fisher, one of the co-authors of the well-known book entitled Getting to Yes: Negotiating Without Giving In. That book proposed a system of principled interests-based negotiation which was adaptable to mediation. It formed the basis of the initial mediation processes used by the National Native Title Tribunal, to which I was appointed in 1994. I wrote an article for the Australian Dispute Resolution Journal at the time entitled ‘Hands on Judges, User Friendly Justice’.
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