Unearthing lawyers' role in VCAT mediation : do theory and practice converge?

While mediation literature is replete with theoretical accounts of what "should" occur in mediation, there remains a dearth of empirical research elucidating what "actually" occurs in practice. In particular, the manner in which lawyers represent clients in mediation has attracted scant consideration. Hence, based on the proposition that successful mediation outcomes require a consonance between theoretical objectives and practical reality, accurate evaluation of mediation's efficacy cannot currently be undertaken. Since the use of mediation services in Australia continues to increase dramatically, as evidenced by its central role at the Victorian Civil and Administrative Tribunal (VCAT), such appraisal is of critical importance.

In order to address this situation, this thesis sought to explore the extent to which conceptualist understandings of the lawyer's role in mediation cohere with empirical perspectives. This involved two stages:

First, the underlying mediation objectives most relevant to client representatives were examined. From the perspective of the dominant theoretical model – facilitative mediation - these include: (i) enhanced party participation; (ii) adoption of problem-solving negotiation strategies; (iii) consideration of the dispute's relational dimensions; and (iv) honouring of procedural fairness principles.

Second, to unearth whether lawyers give effect to these objectives in practice, pastresearch was reviewed and an empirical examination of the mediation service at VCAT was conducted. Employing a qualitative, case study design, the investigation involved two components: (i) interviews with ten lawyers who regularly represent clients inAnti-Discrimination (AOL) and Domestic Building (DBL) mediations at VCAT; and(i) observation of one live AOL mediation session and two live DBL mediations.

In line with past research indicating that mediation objectives are not always met in practice, results of the present study revealed that some lawyers fail to implement facilitative objectives. Results also suggested that the extent of prior training in mediation and/or negotiation techniques was limited. Although the present study involved a small data set and hence is not amenable to broad generalisations, a number of broad recommendations were nevertheless made with a view to enhancing further the value and contribution of VCAT and other mediation services. They include: (i) establishing clear policy regarding mediation philosophy; (ii) fostering mediator implementation of accepted theoretical approaches; developing a specific code of conduct for client representatives; promoting increased lawyer education and training; and conducting further research into representational mediation practice.