AltLJ Vol 41:2 2016 — 105 ARTICLES A ustralian workers who seek legal or other redress in response to workplace abuse 1 usually participate in some form of alternative dispute resolution (‘ADR’). 2 In the (legal) practitioner author’s experience, ADR in bullying, harassment and discrimination matters typically takes the form of conciliation or mediation, although matters infrequently progress to arbitration. 3 ADR is sometimes referred to simply as ‘dispute resolution’ 4 but in this paper ADR is used as it better identifes the process as an alternative or adjunct to traditional dispute resolution by litigation, or more specifcally, to adjudication by a court. 5 Almost 30 years ago, Tyler argued that, where ADR is used in lieu of adjudication, it should be evaluated to determine if the objectives for which it was designed were being met. 6 ‘Formal’ ADR processes have generally always operated alongside and do not supplant what we might characterise as customary informal ADR (or lawyer-to-lawyer negotiations to settle disputes outside of the courtroom). Evaluation of ADR needs to consider the goals of the justice system and the ability of different approaches to achieve those goals. 7 Tyler identifed four categories of ADR evaluation including issues of economy and cost, questions of interpersonal climate, assessments of outcome quality, and community perspectives. 8 In assessing the usefulness of ADR to resolve cases of workplace abuse brought under the Fair Work Act 2009 (Cth) (‘the FW Act’), this article focuses only on what Tyler characterises as questions of interpersonal climate and outcome quality. Although not totally dissociated from arguments of cost and economy, the interpersonal dimension proposes disputant satisfaction with ADR as an evaluation criterion. 9 Using this criterion, compelling evidence in support of ADR is available. 10 However, as Tyler aptly notes, disputant satisfaction as a measure of ADR success has a ‘dangerously seductive quality’ that is not necessarily objectively justifed. 11 Closely allied to the concept of disputant satisfaction are concerns about outcome quality. This measure addresses (among other things) the impact of ADR processes on the disputants. For some, ADR is considered a ‘second class justice’ that lacks the protections of the formal justice system. 12 ADR is also seen as potentially harmful to parties lacking power, 13 including we suggest, individual employees who have experienced workplace abuse. Background: The use of ADR Both formal and informal ADR processes are enmeshed in the resolution of Australian employment disputes. Prior to commencing litigation, the target or their employing organisation may engage a private mediator to try to sequester and resolve the complaint before it leaves the organisation. 14 Lawyers may also initiate mediation to try and resolve the case between themselves (informal ADR) before making a formal application. After proceedings have been initiated but before the case is heard, a court or and tribunal may also attempt ADR and, indeed, referral for ADR might be mandatory. 15 As Spencer points out, ‘a lawyer’s duty is to advise the client of all available options to resolve the dispute — not just the litigious option’. 16 A requirement to offer ADR has been part of Australia’s legal landscape since at least 2000, 17 though ADR has been signifcant in Australia for much longer. During the 1891 Constitutional Convention, it was suggested that the (Australian) Commonwealth should have comprehensive power to make laws with respect to conciliation and arbitration. This idea was ultimately refected in the controversial Conciliation and Arbitration Act 1904 (Cth) which allowed interstate industrial disputes to be settled by conciliation and arbitration. 18 Under the Fair Work Act Against this historical background, it is not surprising that more than a century later, whatever legal pathway a target takes to address workplace abuse, all roads lead, almost inevitably, to ADR. For example, under the FW Act, discrimination complaints involving termination will, in the frst instance — like unfair dismissal applications — trigger a telephone ‘conciliation’ by the Fair Work Commission (‘FWC’). 19 Where there is no termination, applications, including anti-bullying applications, generally prompt a face- to-face ‘mediation’. In most employment disputes, the FWC is able to direct parties to participate in mediation or conciliation. 20 Although parties may be self-represented during such ADR processes, the FWC may grant permission for the parties to be represented (but there is no general right to legal or other representation). 21 While some believe that a neutral mediator can help self-represented litigants to an extent that legal representation is unnecessary, others believe that such practitioners have less authority and ability to help these parties than the courts, while others believe the truth lies somewhere in-between. 22 Mediators’ duties to remain impartial may be in tension with their REFERENCES 1. We defne workplace abuse as including bullying and harassment and use the term ‘target’ interchangeably with (individual applicant) parties. 2. This is largely a refection of legislation governing employment and other civil litigation, eg, Fair Work Act 2009 (Cth) (‘the FW Act’) s 368, s 505, s 526, s 595, s 739, the Federal Circuit Court Act 1999 (Cth) s 34, and s 53A Federal Court Act 1976 (Cth) (‘the FC Act’). 3. Even where unsuccessful conciliations lead to matters listed for arbitration, tribunals often make further attempts to resolve matters by ADR before hearing. 4. For example, Sternlight suggested in 2000 that the phrase ‘ADR’ was not useful because ADR processes grouped together are more different than similar. In 2009, though, she suggested that ‘ADR’ was helpful to describe dispute resolution processes that are not litigation because others frequently group these processes together: Jean R Sternlight, ‘Lawyerless Dispute Resolution: Rethinking a Paradigm’ (2009) 37(1) Fordham Urban Law Journal 381. 5. ‘ADR’ is also the terminology typically used in the legislation cited at n 2 above, and by lawyers working in this space. 6. Tom R Tyler, ‘The Quality of Dispute Resolution Processes and Outcomes: Measurement Problems and Possibilities’ (1989) 66 Denver University Law Review 419. 7. Ibid 420. 8. Ibid 423–4. 9. Ibid 429. 10. Ibid 429. 11. Ibid 432. 12. Ibid 430. 13. Ibid 431. 14. Dominique Jarvis, ‘Mediation for Harassment Complaints: What Happens to the Parties’ Relationship?’ and Ria Deakin, Roger Walden and Helge Hoel, ‘Reconciling Mediation, Bullying and Harassment: a Mediator Perspective’ (Papers presented at the 9th International Conference on Workplace Bullying and Harassment, Milan, 17–20 June 2014). (ALTERNATIVE) DISPUTE RESOLUTION AND WORKPLACE BULLYING Some pros and cons from the coalface ALLISON BALLARD and PATRICIA EASTEAL