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).
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.
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