Proctor : September 2017
Queensland Law Society Inc. 179 Ann Street Brisbane 4000 GPO Box 1785 Brisbane 4001 Phone 1300 FOR QLS (1300 367 757) Fax 07 3221 2279 qls.com.au President: Christine Smyth Vice president: Kara Cook Immediate past president: Bill Potts Councillors: Michael Brennan, Christopher Coyne, Jennifer Hetherington, Chloe Kopilovic, Elizabeth Shearer, Kenneth Taylor, Kara Thomson, Paul Tully, Karen Simpson (Attorney-General’s nominee). Acting chief executive officer: Matthew Dunn No person should rely on the contents of this publication. Rather, they should obtain advice from a qualified professional person. This publication is distributed on the basis that Queensland Law Society as its publisher, authors, consultants and editors are not responsible for the results of any actions taken in reliance on the information in this publication, or for any error in or omission from this publication, including those caused by negligence. 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Submissions with legal content are subject to approval by the Proctor editorial committee, and guidelines for contributors are available at qls.com.au Advertising deadline: 1st of the month prior. Subscriptions: $110 (inc. GST) a year (A$210 overseas) Circulation: CAB, 31 March 2017 – 10,121 (print) plus 850 (digital) The Queensland Civil and Administrative Tribunal (QCAT) has a strong tradition of using contemporary alternative dispute resolution (ADR) practices. From its inception in 2009, the tribunal has employed mediation and compulsory conferencing to resolve disputes across many of its jurisdictions. One of its most prolific areas of ADR activity is the use of mediation to resolve minor civil disputes (MCDs). These disputes include matters up to $25,000 arising from unpaid debts and consumer/trader disputes. QCAT conducts nearly 2500 MCD mediations each year across Queensland. While the upper dollar limit for such claims is $25,000, the lion’s share of claims mediated are for amounts of $5000 or less, with the majority successfully resolved. Despite the positive results through MCD mediation, QCAT has received feedback from parties that costs associated with travel, parking and lost income are unacceptable when compared to the relatively small amounts in dispute. This is in addition to further costs that may be incurred in attending a hearing should resolution through mediation not be possible. In response to these concerns, QCAT recently chose to trial e-Mediation – the use of instant messaging application Skype to facilitate these sessions. The cost-savings assumption appears to have been proven through the trial and a number of additional benefits realised. e-Mediation results QCAT conducted nearly 50 mediations during the five-month trial, covering a range of dispute types and claim values. Some of the benefits realised during the trial included: Improved settlement rates – To date, QCAT has offered face-to-face and telephone mediation. The settlement results achieved through Skype mediation during the trial period (71%) exceeded the results achieved through face-to-face and phone mediation (56%) by 15%. Anecdotally, parties report that through the Skype mediation they can access non-verbal cues while avoiding the stress associated with travelling to, and attending, QCAT for mediation. Finally, parties can participate in mediation from an environment that is familiar and comfortable to them. Decreased costs for parties – As part of its evaluation process, the e-Mediation party survey sought information on savings in regard to travel, parking and lost wages. QCAT e-Mediation trial provides alternative remedies On average, parties reported savings of about $300 per matter. Survey results also showed the overall level of party satisfaction for Skype mediation (91%) did not vary greatly when compared to party satisfaction for face-to-face and phone mediation (92%). Psychological benefit for parties – In some cases, parties reported benefit in being able to meet with parties while avoiding the experience of being in the same room. Several parties reported mental health issues and suggested that, while they valued the opportunity to mediate their dispute, the impact of having to meet personally with the other party would have been detrimental. While the benefits realised through this trial have been significant, there are a number of lessons that were learnt including: Opt-in vs opt-out – During the trial, an opt-out approach was adopted, meaning that parties had to actively choose not to participate in e-Mediation. Parties had to request an alternate form of mediation (face- to-face or telephone). Given the emerging nature of instant messaging technology, it is likely that use in the foreseeable future will be based on parties opting-in should they prefer the e-Mediation option. Use of suitable technology – QCAT chose a relatively basic technology setup for the trial (webcam, desktop speakers and 22-inch monitor). This limited the effectiveness of sessions, particularly when there were one or more parties attending in person (with a second party on Skype). Larger monitors and more flexible web conference cameras are expected to improve the mediation experience for all parties. Administrative support systems – The tribunal developed support documents including fact sheets and instructions regarding access to Skype. The trial highlighted areas in which these documents may be further developed. QCAT also developed an e-Mediation consent form that addressed issues such as online security. The process of sharing this form with parties and obtaining consent will also be subject to further review. Formal evaluation of the trial has now been completed and, as noted above, the benefits to QCAT and its parties appear significant. QCAT is now in the process of implementing the recommendations arising from the evaluation report and will continue to work on improving the systems that support its delivery of this service. For more information, please contact QCAT alternative dispute resolution manager Peter Johnstone, firstname.lastname@example.org.