¹ Fuller, L, “Mediation, Its Forms and Functions”, (1971) 44 Southern Calif L Rev 305, 328Google Scholar.

² Quoted by Sir Laurence Street, Chief Justice of New South Wales (as he then was) in h address at the conferring of degrees in the Faculty of Law, Sydney Univenity, 25 Februay 1986. Reported in (1987) 11 Syd L Rev 189, 190.

³ This conclusion has been reached after numerous indexes were searched including the Current Law Index for 1986-89, and a check of a 1990 bibliography on alternative disput resolution compiled by Loma Mathie of the Lionel Murphy Library at the Attorney-General Department.

⁴ Galanter, M, “'... A Settlement Judge, Not a Trial Judge': Judicial Mediation in the Unite States”, (1985) 12 Journal of Law and Societ 1CrossRefGoogle Scholar. See also Galanter, M, “Reading Landscape of Disputes”, (1983) 31 UCLA L Rev 4Google Scholar.

⁵ Resnick, J, “Failing Faith - Adjudicative Procedure in Decline”, (1986) 53 U Chicago LR 494,537CrossRefGoogle Scholar.

⁶ Seminar on 3 June 1989. Reported in Reform, 1989, 145-148.

⁷ Resnick, J, supra n 5, 536, 538Google Scholar.

⁸ L Rubenstein, “Procedural Due Process and the Limits of the Adversary System”, (1976) Harvard Civil Rights - Civil Liberties L Rev 48; R Tomasic, “Mediation as an Alternative to Adjudication: Rhetoric and Reality in the Neighbourhood Justice Movement”, in R Tomasic and Feeley (eds), Neighbourhood Justice - Assessment of an Emerging Idea, (1982) 215-248; R Abel, “The Contradiction of Informal Justice” in R Abel (ed), The Politics of Informal Justice, (1982) Vol 1, 267-320.

⁹ Fiss, O, “Against Settlement”, (1983) 93 Yale L J 1073, 1087CrossRefGoogle Scholar.

¹⁰ Trubek, D, “Turning away from Law”, (1984) 82 Mich L Rev 824CrossRefGoogle Scholar.

¹¹ Edwards, H T, “Commentary. Alternative Dispute Resolution: Panacea or Anathema?”, (1986) 99 Harv L Rev 668, 676CrossRefGoogle Scholar.

¹² Susskind, “Environmental Mediation and the Accountability Problem”, (1981) 6 Vermont L Rev 1.

¹³ J Stulberg, “The Theory and Practice of Mediation: A Reply to Professor Susskind”, (1985) 6 Vermont L Rev 85.

¹⁴ For example the well known disagreement in the literature between Fuller and Fiss, with McThemia and Shaffer joining the fray. See 0. Fiss, supra n 9; L Fuller, supra n 1; L Fuller, “The Forms and Limitations of Adjudication”, (1978) 92 Harv L Rev 353; A McTheria and T Shaffer, “For Reconciliation”, (1985) 97 Yale L J 1660.

¹⁵ See s 43(1) and s 34(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (henceforth AAT Act) for powers of determination and mediation respectively. While the AAT is distinctive in this regard, it is by no means unique. A conferencing structure is built into the Family Law Act 1975 (Cth); see P Theobald, “ Alternative Dispute Resolution - Its Future in Family Law”, (1988) 2 Australian J of Fam L 164, and Family Law Act 1975 (Cth) ss 16A, 64(1)(b), 79(9). Under the Retail Shop Leases Act 1984 (Qld) a mediator hears disputes between landlords and tenants but has no determinative powers (ss 17-27). Similarly, an arbitrator operating within the context of the Arbitration (Civil Actions) Act 1983 (Qld) must anempt mediation before making an award (s 9). In the Queensland Supreme Court parties may be told to put their case before mediator (Practice Direction 4/87). For more examples see NSW Law Reform Commission, Training and Accreditation of Mediators, (1989), 9-14. For a note on the American situation see D Riggs and E Dorminey, “Federal Agencies' Use of Alternative Means of Dispute Resolution” (1987) l Admin L J 136. functions of the AAT per se. Academic interest focuses on such things as AAT in the context of the “new” administrative law,16 the examination, specific AAT jurisdictions,17 and practice procedures in the AAT.18 In oth, words there is a very real knowledge gap here about basic Tribunal functions.

¹⁶ J M Sharpe, The Administrative Appeals Tribunal and Policy Review, (1986); D G Gardin, “Policy Review Reviewed: The Pubescent State of the 'New' Administrative Law” (1988) Queensland U Technology Ll, 123; G Peiris, “The Administrative Appeals Tribunal Australia: The First Decade”, (1986) 6 Legal Studies 303; D McGann, “Snakes and Ladder, and the Administrative Appeals Tribunal”, (1989) 19 Queensland L Soc J 37; R Layton. “The Administrative Appeals Tribunal: A Nuts and Bolts Account”, (1989) 24 L Soc J 38; Aronson and N Franklin, Review of Administrative Action (1987) ch 10; GA Flick, Feder Administrative Law (1984); The Hon Mr Justice Brennan, “The Future of Public Law - T Australian Administrative Appeals Tribunal”, (1979) 4 Otago L Rev 286; J Goldring, (ed) T. Workings of the Administrative Appeals Tribunal (1980); J Goldring, “The Foundations oft 'New Administrative Law' in Australia”, (1981) 40 Australian J Pub Admin 79; J Goldrin ''Responsible Government and the Administrative Appeals Tribunal”, (1982) 13 F L Rev 90;. Hotop, Principles of Australian Administrative Law, (6th ed, 1985); M Kirby, “Administrati Law Reform in Action” (1978) 2 UNSW U 203; M Kirby, “Administrative Review on t Merits: The Right or Preferable Decision”, (1979) 6 Monash U L Rev 171; M Kirt “Administrative Review: Beyond the Frontier Marked 'Policy - Lawyers Keep Out!"', (198 12 F L Rev 121; D Pearce, Commonwealth Administrative Law (1986); M Taggart (ed, Judicial Review of Administrative Action in the 1980s: Problems and Prospects (1987); A Ha “Aspects of Federal Jurisdiction: The Administrative Appeals Tribunal (Cth)” (1983) 57 A 389.

¹⁷ M Clothier, “Howizatl Appeals and migration practice are not all Cricket”, (1987) 61 Law Institute J 186; E Kyrou, “ AAT and the Federal Court Review in Customs Matters”, (1988)' Law Institute J 1228; E Kennon, “ Taxation Appeals and Reviews”, (1987) 16 Australian T Rev 10; M Partington, “The Impact of the Administrative Appeals Tribunal on Social Security”, nd.; M Sassella, “Administrative Law in the Welfare State: Impact on the Department of Social Security”, (1989) Canberra Bulletin of Pub Admin No 58, 116; Woellner, “An Analysis of the New Taxation Appeal Process”, (1987) 4 Australian The Forum 241; G Warburton, “The Rights of Non-Citizens in Australia: Modes of Reviewing Exercises of Discretionary Power under the Migration Act 1958 (Cth)”, (1986) 9 UNSW 90.

¹⁸ R D Nicholson, “Practice Procedures and Evidence in the Administrative Appeals Tribunal, Part 1”, (1988) 4 Australian Bar Rev 85; RD Nicholson, “Practice Procedures and Evidence the Administrative Appeals Tribunal Part 2”, (1988) 4 Australian Bar Rev 128; G Osborne “Inquisitional Procedure in the Administrative Appeals Tribunal: A Comparative Perspective (1982) 13 FL Rev 150.

¹⁹ A problem not specific to Australia. See J Cooley, (1986) 69 Judicature 263.

²⁰ An interesting development given that mediation and negotiation pre-dated adjudication forms of conflict resolution. See D Riggs and E Dorminey, supra n 15, 126.

²¹ R Abel, “Conservative Conflict and the Reproduction of Capitalism: The Role of Informal Justice”, (1981) 9 Inter J Sociol of Law 245; R Abel, The Politics of Informal Justice: The American Experience, (1982); R Abel (ed) The Politics of Informal Justice: Comparative Studies (1982).

²² R Hofrichter, Neighbourhood Justice in Capitalist Society: The Expansion of the Informal State, (1987).

²³ C Harrington, Shadow Justice: The Ideology & lnstitutionalization of Alternatives to the Courts (1985); “The Politics of Participation & Nonparticipation in Dispute Processes”, (1984) 6 Law & Policy 203; C Harrington and S Merry, “The Ideology of Community Mediation”, (1988) 22 Law and Soc Rev 709.

²⁴ B Santos, “Law and Community: The Changing Nature of State Power in Late Capitalism”, (1980) 8 Inter J Sociol of Law 379.

²⁵ S Spitzer, “The Dialectics of Formal and Informal Control”, in R Abel (ed) The Politics of Informal Justice (1982).

²⁶ S Henry, “Community Justice, Capitalist Society, and Human Agency: The Dialectics of Collective Law in the Cooperative”, (1985) 19 Law and Soc Rev 303.

²⁷ R Delgrado, C Dunn, P Brown, H Lee, D Hubbert, “Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution”, (1985) Wisconsin L Rev 1359.

²⁸ I have addressed the critical socio-legal interpretation of mediation elsewhere: W De Maria, “Social Work & Mediation: Hemlock in the Flavour of the Month”, Department of Social Work, University of Queensland, (1990) 45 Australian Social Work 17.

²⁹ At the time of writing there were 250 Commonwealth Acts and Regulations authorising the: making of applications to the Tribunal for review of decisions made in the exercise of power, conferred by enactment. See Administrative Review Council, Thirteenth Annual Report 198c 89 (1989). Appendix 1 of that report lists 224 enactments that confer review powers on th AAT. From 1 July 1989 - 28 February 1990 that figure has risen by 26.

³⁰ For a discussion on reviewability see D O'Brien, (1989) “Tribunals and Public Policy - What, Decisions are Suitable for Review”, Canberra Bulletin Pub Admin No 58, 86, 91.

³¹ AAT Case Statistics Report 23 March 1990, 2.

³² In the year ended 30 June 1989, the outcome figures for 1988/89 in non-tax jurisdictions ar set out below. 1986-87 and 1987-88 figures are included for comparison. Calendar yer statistics are added to bring the figures up to December 1989.

Non taxation jurisdictions	1986-87	1987-88	1988-89	1989
Conceded by decision maker	183	71	205	131
set aside and new decision
substituted	252	253	418	493
Varied	47	58	63	70
Remitted to decision maker	65	85	45	56
Parties reached agreement
Withdrawn by consent	35	145	253	297
(incl non-appearance)	1021	1396	1244	1817
Application withdrawn	334	90	234
Decision affinned	424	500	436	434
Decision that proceeding
continue only if the
parties request	254	309	315	115
Outside jurisdiction	141	116	174	198
Other	69	84	82	90
TOTAL	2825	3107	3469	3701

³³ See eg, Politis v Federal Commissioner of Taxation (1988) 16 ALD 707 (reasons of Tribunal: Statham v Federal Commissioner of Taxation (1988) 16 ALD 723 (duty to reach adequate findings on the facts); Fletcher v Federal Commissioner of Taxation (1988) 16 ALD 280 (re confirmation of powers of Tribunal); Bogaards v McMahon (1988) 80 ALR 342 (estoppe jurisdiction). See also Becker v Minister for Immigration & Ethnic Affairs (1977) 15 ALR 69, and Drake v Minister for Immigration & Ethnic Affairs (1979) 2 ALD 60. For a general, comment see J Goldring, “Responsible Government and the Administrative Appeals Tribunal

³⁴ (1982) 13 F L Rev 90, 90-91. In 1978-79 there were six appeals to the Federal Court. By 1985-86 this number had increased to 44. By 1988-89 it was 143.

³⁵ The Administrative Review Council was established under Part V of the AAT Act. Responsible not to the President of the AAT, but to the Commonwealth Attorney-General, the ARC functions as an administrative review advisory and policy research body.

³⁶ From time to time accounts of what should be “correct” conferencing practice has been written. Ironically these accounts are from the pens of senior legal personnel of the Tribunal; until recently the least likely to be involved in conferencing. Having said that, there is another side to these accounts. They usually present strong if not condescending support for the part-time member; see The Hon Mr Justice Brennan, “The Role of the Part-Time Member”, Canberra, 8 November 1979, 20; R Balmford, “The Administrative Appeals Tribunal in Practice”, (1984) Law Institute J 807; A Hall, “Administrative Review Before the Administrative Appeals Tribunal - A Fresh Approach to Dispute Resolution?”, (1981) 12 FL Rev 71.

³⁷ R D Nicholson, “Practice Procedure and Evidence in the Administrative Appeals Tribunal, Part 2” (1988) 4 Australian Bar Rev 128, 130.

	1988	1989
General and Veterans	4708	-10576
Tax	18940	38005
TOTAL	23648	48581

The 1989 figures are preliminary only, and they will be a high water mark statistic, held up by the Tax Conference Statistics which are now declining. (Source: AAT Quarterly Statistical Summary).

³⁸ I have arrived at this disposition figure by adding together all outcomes that do not involve a determination of the facts, (conceded by decision maker, parties reach s 34(2) agreement, withdrawn by consent, continue only at parties' request, outside jurisdiction and other) and subtracting this from the final outcome statistics.

AAT Outcomes 1988-89
	1988	1989
Pre-Hearing Outcome (N)	2007	2648
Hearing Outcome (N)	3061	3701
Pre Hearing Disposition (%)	65.5	71.5

(Source: AAT Quarterly Statistical Summary).

³⁹ Camey, T, “Cloaking the Bureaucratic Dagger? Administrative Law in the Welfare State (1989) Canbena Bulletin of Pub Admin No 58, 123, 125Google Scholar.

⁴⁰ NSW Law Refonn Commission, supra n 15, 1.

⁴¹ For infonnative analyses of negotiation see P H Gulliver, Disputes and Negotiations: A Creative Cultural Perspective, (1979); 0 Bartos, Process and Outcomecome of Negotiations, (1970);H Ross, Settled Out of Court, (1970); J Rubin and B Brown, The Social Psychology of Bargaining and Negotiating, (1975); W Zartman, “The Political Analysis of Negotiations”, (1974) World Politics 385; W Zartman, “Negotiations: Theory and Reality”, (1975) 9 J Intemati Affairs 69; W Zartman, TM 50% Solution, (1976). Mediation references have already offered. For adjudication, at the other end of the continuum, see the following works: 0 Finn “Against Settlement”, supra n 9; 0 Fiss, “The Fonns of Justice”, (1979) 93 Harv L Rev 1 Fiss, “The Social and Political Foundations of Adjudication”, (1982) 6 Law and Hu Behaviour 121.

⁴² S Goldberg, E Green and F Sander, Dispute Resollllion, (1985), 91.

⁴³ Moore has produced a similar taxonomy. See C Moore, The Mediation Process: Practice Strategies for Resolving Conflicts, (1987), ch 2.

⁴⁴ Macquarie Dictionary, (1981), 501.

⁴⁵ Hoover trades critical evaluation for hagiography when he presses on to a comfortable liberal definition of determination, whereby “... judgement is rendered by a fair, objective and preferably pitiless evaluation of the facts...”. M Hoover, “Dispute Resolutions: Comparisons”, Le Nouvelles, September (1985), 11 I.

⁴⁶ J Folberg and A Taylor, A Comprehensive Guide to Resolving Conflict without Litigation, (1984) 7. See also C Moore, supra n 43, 6. For other definitional works see J Cooley “Arbitration v Mediation -Explaining the Differences”, (1986) 69 Judicature 263.

⁴⁷ Supra n 21-28.

⁴⁸ L Riskin, “Mediation and Lawyers”, (1982) 43 Ohio State U 29, 30.

⁴⁹ Adversarialism is the target of various critiques. At the risk of appearing overly reductionist, they can be grouped together. Adversarialism is seen as - too formal, too expensive, too long and too conflictual. In May 1989 the Senate Standing Committee on Constitutional and Legal Affairs was given a reference to enquire into the cost of justice in Australia. This reference should be seen within the growing international context of disenchantment with current forms of dispute resolution. At the time of writing this paper, the Committee had not reported. Along similar lines the NSW Law Reform Commission received a reference from the then NSW Attorney-General to enquire into the need for training and accreditation of mediation because of continuing dissatisfaction with the court system. A discussion paper, “Alternative Dispute Resolution, Training and Accreditation of Mediators” has been published (October, 1989).

⁵⁰ M Galanter “Compared to What? Assessing the Quality of Dispute Processing”, 66, Denver Uni L Rev.

⁵¹ Most of the orthodox legal literature is of course unconscious of this danger; see R Argy “Alternative Dispute Resolution”, (1987) 3 Legal Issues 11; P Theobold, “How Family Li Disputes could be solved by Alternative Means”, (1987) 22(5) Australian Law News 24; Justice CW Pincus, “Judge Asks Why Old Methods Are Still Used to Resolve Dispute”, (19f 23(10), Australian Law News 11; Mr Justice CW Pincus, “Mixture of Methods Better to Sol Complex Issues: Alternative Dispute Resolution” (1988) 23(11) Australian Law News, 19; Pickering, “Litigation Alternatives: Mediation and the Ministerial”, (1986) 60 Law Institutl 316; R Mitchell, “Conflict Resolution in our Society”, (1989) 11 Law Society Bulletin 197; Kinsella, “Alternative Dispute Resolution: Long Court Lists Encouraging New Ways Settling Disputes, (1988) 1 Australian Construction Law Newsletter 5.

⁵² M Lowry, “Law School Socialization and the Perversion of Mediation in the United State

⁵³ Id.

⁵⁴ L Riskin, supra n 48.

⁵⁵ Ibid.

⁵⁶ This is a particularly apt observation for the current administration of the AAT. In a decision that will be remembered more for its speed and caprice, the Acting President of the Tribunal ruled against a 15 year practice when he determined that part-time members could no long conduct conferences. In future (post June 1990) AAT conferences will be conducted lawyers and public servants, both untrained and inexperienced in the mediation role. Foi particularly informative description of the complexities of mediation see J Cooley, supra n 19.

⁵⁷ M Lowry, supra n 52.

⁵⁸ Lowry, M Haney, C, “The Creation of Legal Dependency: Law School in a Nutshell” (ed)Warner (ed) The People's Law Review (1980), 36Google Scholar.

⁵⁹ Quoted by Sir Laurence Street, supra n 2, 190.

⁶⁰ Menkel-Meadow, C, “For and against Settlement: Uses and Abuses of the Mandatory Settlement Conference”, (1985) 33 UCLA L Rev 485,487Google Scholar.

⁶¹ The Administrative Conference of the United States has taken the inflexible view with respect to its recommendations about mandatory arbitration. It believes that “where a dispute may resolved through reference to an ascertainable norm, such as a statute, rule or custom, those arbitration is irrelevant” (Administrative Conference of the United States, Propose Recommendation “Assuming the Fairness and Acceptability of Arbitration in Fedearl Programs” (nd)).

⁶² C Menkel-Meadow, supra n 60.

⁶³ T Camey, supra n 39.

⁶⁴ A Scalia, “Vermont Yankee: The APA, the DC Circuit and the Supreme Court”, [19] Supreme Court Rev 344; I McKenna, “The Legalization of Supplementary Benefits -Power to the Oaimants?”, [1985) Public Law 455; J Handler, Protecting the Social Service Clienl: Legal and Structural Controls on Official Discretion, (1979).

⁶⁵ Section l 7(C) of the original Invalid and Old Age Pensions Act 1908 (Cth) gave the Commissioner of Pensions discretionary power to reject applications for old age and invalid pensioners if they were found to be of bad character.

⁶⁶ Full blood Aborigines were not entitled to Social Security payments until 1942. See W De Maria, “White Welfare, Black Entitlement - The Social Security Access Controversy, 1939- 59”, (1986) 10 Aboriginal History 25.

⁶⁷ The “living together as man and wife” stipulations in the Social Security Act are still the subject of controversy.

⁶⁸ T Camey, supra n 39, 130.

⁶⁹ Ibid.

⁷⁰ S Goldberg et al, supra n 42, 91.

⁷¹ C Moore, supra n 43, 11-12.

⁷² See Shingles v Department of Social Security, (1984) 6 ALO 568; Mrs M v Departmen Social Security (1983) 5 ALN N 258, and Seagar v Department of Social Security (198 ALD 556.

⁷³ Panke v Department of Social Security (1981) 4 ALD 179; Sheely v Department of S Security (1982) 4 ALN N 115; Howard v Department of Social Security (Federal Court Australia, 13 December 1983, unreported) Q.G. 106 of 1983; McDonald v Departmen Social Security, Federal Court V.G. 196 of 1982. For a Department of Social Security vie AAT impact, see M Sassella, “Administrative Law in the Welfare State: Impact on Department of Social Security”, (1989) Canberra Bulletin of Pub Admin No 58, 116, 119-1

⁷⁴ D O'Brien, supra n 30, 90.

⁷⁵ M Lowry, supra n 52, 248.

⁷⁶ D Riggs, E Dorminey, supra n 15, 129.

⁷⁷ Id.

⁷⁸ Edwards discusses this concept, see supra n 11, 671.

⁷⁹ At the end of 1989 there were 13,907 matters outstanding from all divisions of the AAT. See AAT Quarterly Statistical Return, 23 March 1990.

⁸⁰ Report of the Administrative Revison Committee (Kerr Committee) 1971. Commonwealth of Australia, Parliamentary Paper, No. 144 (1971), paragraph 58.

⁸¹ Specifically the writs of mandamus, prohibition, certiorari, and quo warranto. See I Thynne and J Goldring, Accountabilily and ConJrol: Government Officials and the Exercise of Power, (1987), 95.

⁸⁰ To this end I still cannot understand why the Commonwealth bureaucracy mounted so much opposition to the Freedom of Information Act 1983 (Cth), yet let the AAT legislation pass without real opposition.