14.1 The Commission’s recommendations for defamation law reform focus on more effective means of restoring the reputation of people who have been defamed. The use of alternatives to protracted litigation to settle defamation actions is an important element in achieving that objective. In this Chapter we recommend that mediation should be offered to parties involved in defamation actions in New South Wales.
14.2 Mediation is the primary consensual dispute resolution process, where a neutral third party assists the parties to negotiate a mutually acceptable resolution of matters in dispute.1 Mediation is the Commission’s preferred alternative dispute resolution (ADR) process because it has become the most widely understood and practised of the varieties of ADR techniques.2 It is the commonly used ADR technique in New South Wales for disputes in which litigation is contemplated, both in private dispute resolution and in court-connected programs.3 Experienced mediators, usually but not exclusively lawyers, are readily available in New South Wales and the process has the support of the legal profession, courts administration and participants.4
14.3 Mediation has already been actively considered for resolving defamation actions.5 Submissions on DP 32 were generally in favour of mediation being used more frequently for resolution of defamation actions,6 though some proposed more coercive or compulsory elements than occur in mediation as is currently understood and practised.7 There was little support for using other alternatives to litigation currently available,8 or for arbitration such as the procedure offered by the Iowa Libel Dispute Resolution Program.9 The Commission considers that other current alternatives are unlikely to provide an effective alternative to litigation.
MEDIATION IN DEFAMATION ACTIONS
14.4 The Commission strongly supports the use of mediation in the resolution of defamation disputes. This conclusion recognises the potential benefits to be obtained by many parties to defamation actions which currently follow the lengthy, tortuous and expensive path of litigation, but the overwhelming majority of which are settled by negotiation prior to trial. In many respects, incorporating mediation into the methods of resolving defamation disputes is no different from the use of mediation in other civil litigation, a phenomenon which is increasingly apparent in the Australian legal system.10 The potential benefits of mediation likely to appeal to parties to defamation actions include speed, lower costs, flexibility, informality, confidentiality and the consensual and creative nature of settlements.
14.5 The circumstances of defamation litigation suggest consensual resolution of disputes is potentially more appropriate and satisfying for some parties. The focus of many defamation actions is the actual vindication of reputation rather than the assertion of abstract legal rights. In cases of accidental defamation, which are likely to be settled, this can be done more efficiently. The uncertainty in defamation litigation makes financial considerations particularly relevant to parties contemplating mediation. Speedy settlements permit more rapid restoration of reputation, and remedies other than damages more relevant redress for hurt.
14.6 It must be acknowledged, however, that for other parties, successful participation will be extremely unlikely. It is the intensely felt, entrenched and intangible interests characterising defamation actions which can make parties extremely polarised, drag out litigation and preclude contemplation of settlement.11 There will also be some cases in which difficult questions of law arise which, while not precluding mediation, may make its successful employment improbable.
14.7 Mediation has been used already in the resolution of some defamation actions in New South Wales. The Commission is aware that a small number of defamation matters are among those mediated in the Settlement Week Programme conducted by the NSW Law Society, and that others have been mediated by private agreement between the parties during the pre-trial period. Confidentiality surrounding the process of mediation prevents the Commission reporting on the conduct and outcomes of these mediations in detail. The numbers are relatively small, but some conclusions can be made about their effectiveness.12 Parties are more likely to be individuals, although some media defendants, including major ones, do choose to mediate. The benefits of defamation mediation put to the Commission include: savings in costs; the non-threatening atmosphere; greater confidentiality;13 the opportunity to explain, or to apologise and accept the apology; face-saving and creative solutions beyond those which a court is empowered to order; more efficient settlement of matters which were most likely to settle before trial.
MEDIATION UNDER THE SUPREME COURT ACT
14.8 The Commission considered several options for implementing mediation of defamation actions. Mediation could continue to be offered in an informal way, with parties making arrangements privately, or participating in the Settlement Week Programme. Alternatively, the Court could incorporate settlement negotiations into the pre-trial procedures of the Defamation List.14 Between these options lies the court-connected program, using independent mediators but with the Court assuming an administrative role to a greater or lesser degree. In the Commission’s view, this middle path is to be preferred. Avoiding the dangers inherent in the court’s direct involvement in the mediation process,15 this should make mediation more readily used where parties desire to settle their disputes.
14.9 In the Commission’s view, recent amendments to the Supreme Court Act offer the most effective method of implementing mediation of defamation actions. The Courts Legislation (Mediation and Evaluation) Amendment Act 1994 (NSW) enables the Supreme Court (among others) to establish ADR procedures. It sets broad parameters within which courts can develop individualised court-annexed dispute resolution programs for different types of cases. The flexibility afforded by this legislation is most suited to developing a voluntary mediation procedure most appropriate for parties to defamation actions, but one where accountability for the quality and integrity of the program rests with the court.
14.10 The Supreme Court Act 1970 (NSW) now permits the Court to make an order referring parties, with their agreement, to mediation.16 Where this occurs, the Act confers a privilege similar to that for judicial proceedings on mediation sessions and documents prepared for them, specifies the confidentiality which applies to mediation sessions and limits the liability of mediators. Costs of mediation are to be paid as agreed by the parties. Agreements reached at mediation are enforceable as orders of the Court. The Court is empowered to compile lists of persons suitable to be mediators, and set the necessary qualifications. Specialist lists for different types of matters are permitted. More detailed procedures can be established by Rules of Court, allowing for flexibility in the way programs can operate. The over-riding principle of the amending legislation is that participation in mediation is voluntary.
14.11 In an earlier report, Training and Accreditation of Mediators (LRC 67) the Commission recommended that dispute resolution programs conducted in connection with courts and tribunals be operated so as to guarantee the integrity of the process and quality of service.17 Of particular concern to the Commission were the dangers that unless safeguards were built into the procedures, ADR processes could be used to coerce parties to settle and predominantly to serve objectives such as clearing the court lists and saving Court resources.18 The Courts Legislation (Mediation and Evaluation) Amendment Act 1994 (NSW) accords with the Commission’s recommendations in LRC 67 to the extent that the Court must accept responsibility for any ADR program connected with its jurisdiction.
Procedures for mediation
14.12 The Commission also recommended in LRC 67 that appropriate procedures should be developed complying with clearly enunciated guidelines and operating with adequate resources. The Commission did not consider that these guidelines could be specified in the abstract, except the requirement that mediators should be appropriately trained. The new legislation puts the onus on the courts to establish program procedures, and determine who may act as a mediator. The Commission reiterates its earlier recommendations that a mediation program for defamation matters should have clear objectives and appropriate procedures, be adequately resourced and, above all, that mediators should be trained.
14.13 The Commission considers that the Court should be left to develop specific procedures for mediation of defamation actions. Submissions in response to issues raised in DP 32 offered various suggestions about the timing of mediation, attendance at the sessions, disclosure and confidentiality, costs etc. A considerable amount of expertise and research in court-connected mediation now exists. The Commission considers that the Court has sufficient access to these resources to enable it to devise the most appropriate procedures for defamation actions, under the umbrella of the legislative provisions introduced by the Courts Legislation (Mediation and Evaluation) Amendment Act 1994 (NSW). Accordingly we make no recommendations about how mediation of defamation actions should occur.
FOOTNOTES
1. See New South Wales Law Reform Commission Training and Accreditation of Mediators (Report 67, 1991) at para 2.5; Supreme Court Act 1970 (NSW) s 110I.
2. See LRC 67 at para 2.10 for descriptions of consensual ADR techniques.
3. Mediation has been made available for matters proceeding in the Federal Court, the Family Court, NSW Supreme, District and Local Courts, the Land and Environment Court, the Commonwealth Administrative Appeals Tribunal, and several other Courts in Australian jurisdictions. See Courts Legislation (Mediation and Evaluation) Amendment Act 1994 (NSW).
4. M Dewdney, B Sordo and C M Chinkin, Contemporary Developments in Mediation Within the Legal System and Evaluation of the 1992-93 Settlement Week Programme (Law Society of NSW, Sydney, 1994) at Chapter 2; T F M Naughton, “Mediation and the Land and Environment Court of New South Wales” (1992) 9 Environment and Planning Law Journal 219.
5. The Defamation Bill 1992 (NSW) cl 55 provided for a mediator to advise on correction statements or replies. The Legislation Committee received many submissions supporting mediation in defamation, and considered quite detailed proposals about how mediation could function: Parliament of New South Wales, Legislative Assembly, Report of the Legislative Assembly on the Defamation Bill 1992 (October 1992) Chapter 14.
6. M G Sexton, Australian Society of Authors, Australian Press Council, Law Institute of Victoria, Australian Book Publishers Association, Law Society of NSW: Submissions.
7. Nine Network Australia, Consolidated Press Holdings, ACP Publishing, Australian Press Council, Australian Broadcasting Commission: Submissions.
8. DP 32 at paras 3.12-3.20.
9. DP 32 at paras 3.46-3.62.
10. See Dewdney, Sordo, Chinkin at Chapter 2; H Astor and C M Chinkin, Dispute Resolution in Australia (Butterworths, Sydney, 1992).
11. See DP 32 paras 3.5-3.11, and also references noted there: R P Bezanson, G Cranberg, J Soloski, Libel Law and the Press: Myth and Reality (Free Press, New York, 1987); R M Ackerman, “Defamation and Alternative Dispute Resolution: Healing the Sting” (1986) Missouri Journal of Dispute Resolution 1 at 18-20.
12. Advice to the Commission from Settlement Week Programme administrators and mediators, July 1994.
13. Though where the parties agree that a correction or apology will be published, they will necessarily agree to forgo the confidentiality of the mediation to the extent necessary to comply with the agreed terms.
14. Conducted by Court personnel in a manner similar to Status Conferences under Differential Case Management Program which applies to other Common Law matters in the Supreme Court: see Supreme Court Practice Note 81.
15. A theme developed strongly in many critiques of court connected ADR: see LRC 67 Chapter 6 generally, and references in footnotes 7, 19, 26.
16. Supreme Court Act 1970 (NSW) Part 7B ss 110H-110S.
17. LRC 67 at Chapter 6.
18. See LRC 67 at Chapter 6.‘
