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THE LAW REFORM COMMISSION OF HONG KONG - page 217 / 360

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(3)It enhances the acceptability and quality of decisions.918

9.9The Access to Justice Advisory Committee concluded by endorsing the Joint Select Committee’s recommendation of a shift to ADR in family matters, “provided that appropriate steps continue to be taken to minimise the risk of gender bias in mediations in family law matters”.  They acknowledged that ADR made a substantial contribution to access to justice, and stressed that adequate resources should be made available to implement their recommendations.919

Standards and evaluation

9.10Even though the Committee did not agree with an official accreditation scheme, it did consider that the Australian government should:

“take such measures as are consistent with the independence of the judiciary to ensure the quality, integrity, accountability and ... accessibility of the ADR programs offered in the Family Court, ... and through the Family Mediation Program.”920

9.11The Committee recommended that this obligation could best be fulfilled by establishing a specialist ADR body to advise government and the courts on ADR policy issues, including minimum standards for their programmes.  This body should also consider establishing a national database containing information about programmes, agencies, practitioners and training.921  Most importantly, the Australian government must ensure that federal ADR programmes were regularly and rigorously evaluated to ensure they were achieving their objectives without systemic disadvantages for any user groups.922  The evaluation would include a comparison with unstructured negotiation outside the court system, and with conventional litigation through the court system itself.  The evaluation should also address client satisfaction, and the cost effectiveness of the programmes in comparison with other modes of dispute resolution.

Goals of court-annexed mediation

9.12The Committee noted the concern expressed by the New South Wales Law Reform Commission,923 that the guidelines for the operation of court-annexed schemes should ensure that case management and reduction of court delays are not the sole, or primary, reasons for implementation of ADR programmes.  If this were so, there would be a danger that parties might be coerced into mediation.  

9.13The Committee recommended that the principles set out in the Society of Professionals in Dispute Resolution’s (SPIDR) report on National Standards for Court-Connected Mediation Programs should form the basis of the minimum

918 Supra at paragraph 11.49.

919 Ibid at paragraph 11.2.

920 Supra at paragraph 11.52.

921This was first proposed by the New South Wales Law Reform Commission, in their report, Training and accreditation of mediators, September 1991.

922 Supra at paragraph 11.53.

923 Report on training, supra.

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