AN EVALUATION STUDY IN MEDIATION:

A COMPARATIVE STUDY BETWEEN AUSTRALIA AND JORDAN

A Thesis submitted by

Wesam Faisal Al Shawawreh

For the award of

Doctor of Philosophy

School of Law and Justice,

Faculty of Business, Education, Law and Arts

2020

I
 ABSTRACT

This thesis investigates the process of mediation as a Dispute Resolution (DR)

process within the Australian and Jordanian legal systems. Mediation is an alternative
solution for the traditional adversarial judicial proceedings. This study broadly
defines mediation as a structured process, which engages a third party to help the
disputants to address their dispute and hopefully prevent future problems from
arising. The study focuses on the model of mediation used and the role of the
mediator in controlling the process.

Australian mediation has been operating for much longer than in Jordan.
Consequently, this thesis aims to learn from the Australian experience and thus gain
knowledge that can assist with the growth and development of a fledgling mediation
system in Jordan. The study discusses the challenges that mediation faces in Jordan.
The development of the mediation system in Australia has been a largely successful
experience. Drawing on this experience, the thesis explores the process in both
countries in a comparative manner to learn of possible efficiencies, and to improve
the delivery of mediation in Jordan. The research adopts a comparative methodology
using a contextualised approach that requires an understanding of the legal and
cultural differences and similarities between Jordan, as a civil law country, and
Australia as a common law country. It demonstrates the differences between the
Australian and Jordanian legal systems together with cultural differences in order to
provide context for the operation of mediation. It explores, in particular, the
mediation models utilised and the influence of different cultural considerations
relevant to this process. Evaluating the pros and cons of mediation in Australia and
Jordan provides new insights into an important area of civil procedure and dispute
management in both countries.

II
 CERTIFICATION OF THESIS

This Thesis is the work of Wesam Faisal Mahmoud Al Shawawreh except where
otherwise acknowledged. The work is original and has not previously been submitted
for any other award.

Principal Supervisor: Pauline Collins

Associate Supervisor: Bakr Abdel Fattah Al-Sarhan

Student and supervisors’ signatures of endorsement are held at the University.

III
 ACKNOWLEDGEMENTS

Looking back over my PhD journey, it has been a very challenging learning
experience as it has really tested my patience, endurance, perseverance, and strength.
Nonetheless, it has been one of the most exciting times of my life, and no one word
could precisely describe the treasures it has brought to me.
In completing this journey, I would like to acknowledge the many people who
have greatly assisted me in working on this thesis. First, my daughters – Malak and
Mariam– who have spent many days watching television while I was working on my
thesis. Darlings, I am so thankful to you both for letting me study.
My greatest thanks must go to my supervisory team – Professor Pauline Collins
and Associate Professor Bakr Abdel Fattah AL Serhan. Thank you for the continuous
support throughout my PhD. Special thanks goes to Professor Pauline Collins
because she has inspired and prompted me to develop and explore further through
her critical thoughts and careful reading of the many drafts of this thesis. I am
indebted to both beyond expression and repayment; I could not have imagined having
a better advisor and mentor for my PhD study.
I gratefully acknowledge the scholarship received towards my PhD from Mutah
University/Jordan. I want to thank the University of Southern Queensland for helping
me feel like I can shine like a star. I want to thank all of the interviewees who so
willingly and generously shared their experiences with me. I want also to thank Dr.
Henk Huijser for proofreading my thesis.
Finally, but most importantly, I thank my beloved parents, my father Professor
Faisal and my precious mum Tagreed, my husband Mahmoud, and to my brothers
(Mothana and Saad) and sisters (Sewar and Mahar) and my aunt Professor Yasmeen
for supporting me spiritually throughout writing this thesis and my life in general.

IV
 TABLE OF CONTENTS
ABSTRACT .............................................................................................................................II
CERTIFICATION OF THESIS ...........................................................................................III
ACKNOWLEDGEMENTS ................................................................................................. IV
TABLE OF CONTENTS ...................................................................................................... V
ABBREVIATIONS ............................................................................................................. VIII
LIST OF FIGURES .............................................................................................................. IX
LIST OF TABLES ................................................................................................................. X
Chapter 1: Why Research Mediation in Jordon and Australia ..................................................1
1.0 Aims and Objectives of the Research .................................................................................1
1.1 Literature Review .............................................................................................................6
1.1.1 Mediation Hallmark Philosophies ............................................................................6
1.2 Mediation Models .......................................................................................................... 14
1.2.1 Settlement Mediation Model .................................................................................. 19
1.2.2 Facilitative Mediation Model ................................................................................ 20
1.2.3 Evaluative Mediation Model ................................................................................. 24
1.2.4 Transformative Mediation Model .......................................................................... 26
1.3 The Issues Raised .......................................................................................................... 28
1.4 Research Problem .......................................................................................................... 31
1.5 Overview of Methodology ............................................................................................. 31
1.6 Structure of the Thesis ................................................................................................... 32
1.7 Summary ........................................................................................................................ 33
Chapter 2: Research Theory and Methodology ..................................................................... 34
2.0 Introduction ...................................................................................................................... 34
2.1 Theory .............................................................................................................................. 35
2.2 Qualitative Research ........................................................................................................ 42
2.3 Data Collection – Interview Methodology....................................................................... 44
2.4 Qualitative Data Analysis ................................................................................................ 47
2.5 Summary .......................................................................................................................... 48
Chapter 3: A Contextual Review of the Legal Systems ......................................................... 49
3.0 Introduction ...................................................................................................................... 49
3.1 History ............................................................................................................................. 49
3.2 Civil Law and Common law Legal Systems .................................................................... 53
3.3 The Legal System ............................................................................................................ 56
3.3.1 Federal and Unitary Legal Structure ............................................................................. 56
3.3.2 Separation of Powers .................................................................................................... 58
3.3.3 The Legislature ............................................................................................................. 62

V
3.3.4 The Executive ............................................................................................................... 66
3.3.5 The Judiciary................................................................................................................. 67
3.3.6 Australian Tribunals...................................................................................................... 75
3.4 Cultural Considerations ................................................................................................. 77
3.4.1 High Context and Low Context Cultures ............................................................... 79
3.4.2 Hofstede’s Dimensions of National Cultures ......................................................... 83
3.5 Summary ........................................................................................................................ 91
Chapter 4: The Jordanian Framework .................................................................................... 93
4.0 Introduction to Jordan ...................................................................................................... 93
4.1 Mediation in Bedouin culture .......................................................................................... 93
4.1.1 Customary Dispute Resolutions Hallmarks .................................................................. 96
4.1.2 The Traditional Elements ............................................................................................ 101
4.1.3 Bedouin Approaches to Dispute Management............................................................ 102
4.3 Mediation in Jordan’s Legal System .............................................................................. 113
4.4 Mediation Models .......................................................................................................... 124
4.5 Summary ........................................................................................................................ 127
Chapter 5: The Australian Framework................................................................................. 129
5.0 Introduction to Australia ................................................................................................ 129
5.1 Mediation in the Aboriginal and Torres Strait Islander Indigenous Culture .................. 129
5.2 Mediation in Australia’s Legal System .......................................................................... 133
5.2.1 Mediation Organisations ............................................................................................. 133
5.2.2 Mediation Legislation ................................................................................................. 137
5.2.3 Court Mandated Mediation ......................................................................................... 139
5.2.4 Mediation Models ....................................................................................................... 143
5.3 Summary ........................................................................................................................ 148
Chapter 6: The Interview Findings and Analysis................................................................ 149
6.0 Introduction .................................................................................................................... 149
6.1 The Interviews ............................................................................................................... 149
6.2 Research Context ........................................................................................................... 150
6.2.1 Mediation Definition ................................................................................................... 151
6.2.2 Mediation Models ................................................................................................ 154
6.2.3 Parties’ Awareness of the Process ....................................................................... 158
6.2.4 Mediation in the Spectrum of DR Processes........................................................ 159
6.2.5 Mediation Growth ................................................................................................ 161
6.2.6 Room for Further Improvement ........................................................................... 166
6.2.7 Need for Research ................................................................................................ 173
6.2.8 Cultural Effects .................................................................................................... 176
6.3 Summary ........................................................................................................................ 180

VI
Chapter 7: Mediations Hallmarks: in Australia and Jordan ................................................. 183
7.0 Introduction .................................................................................................................... 183
1. Confidentiality ..................................................................................................... 183
2. Impartiality........................................................................................................... 186
3. Empowerment ...................................................................................................... 190
4. Voluntariness vs Court-mandated ........................................................................ 192
7.1 Suggestions .................................................................................................................... 195
7.2 Summary .................................................................................................................... 198
Chapter 8: Conclusion-Lessons for Improvement ............................................................... 200
8.0 Introduction .................................................................................................................... 200
8.1 The Barriers for Mediation ............................................................................................ 202
8.1.1 Australia .............................................................................................................. 203
8.1.2 Jordan ............................................................................................................... 206
8.1.3 Recommendations for Jordan .............................................................................. 209
8.2 Limitations of the Study and Suggestions for Future Research ..................................... 210
8.3 Concluding Statement .................................................................................................... 211
BIBLIOGRAPHY ................................................................................................................ 213
APPENDICES ..................................................................................................................... 248

VII
 ABBREVIATIONS

Abbreviation Explanation

AAT Administration Appeals Tribunal

ACDC Australian Commercial Disputes Center
ACDC Australian Commercial Dispute Center
ADR Alternative Dispute Resolution
ADRAC Australian Dispute Resolution Advisory Council
AIDC Australian International Dispute Center
ATSI Torres Strait Islander
Cth Commonwealth
DR Dispute Resolution
HCC High Context Communication
IAMA Institute of Arbitrators and Mediators Australia
JOR Jordan
LCC Low Context Communication
LEADR Lawyers Engaged in Alternative Dispute Resolution
NADRAC National Alternative Dispute Resolution Advisory Council
NMAS National Mediator Accreditation System
NTA Native Title Act
QCAT Queensland Civil and Administrative Tribunal
QLD Queensland

VIII
 LIST OF FIGURES

Figure 1 : Alexander’s Mediation Meta-Model ......................................................... 17

Figure 2: Settlement Model........................................................................................ 19
Figure 3: Facilitative Model ...................................................................................... 21
Figure 4: Evaluative Model ....................................................................................... 26
Figure 5: Transformative Model ............................................................................... 28
Figure 6: The traditional Bedouin approach to all disputes ..................................... 103
Figure 7: The Jordanian Model - Court-mandated Model ....................................... 124

IX
 LIST OF TABLES

Table 1: List of professions interviewed ................................................................... 45

Table 2: Differences between low-context and high-context cultural communication.
.......................................................................................................................... 80
Table 3: Headings related to the room for improvement of Mediation in Australia 166
Table 4: Headings related to room for improvement in Mediation in Jordan .......... 169

X
Chapter 1: Why Research Mediation in Jordon and Australia

1.0 Aims and Objectives of the Research

This thesis investigates the process of mediation as a dispute resolution method

used within the Australian and Jordanian civil legal systems. Mediation embedded in
the civil and commercial disputes in Jordan is recent. It first occurred in 2003 with
the passing of the Law of Mediation and was replaced by the Mediation for Settlement
of Civil Disputes Act, 2006 which has been further amended in 2017. This research
investigates both countries’ experience, the types of mediation used, and in particular
what has worked well and what can be improved. This knowledge will assist with
the growth and development of a fledgeling mediation system in Jordan. The study
brings knowledge to both countries through investigating the details of mediation as
practised and acknowledging areas where improvement can be made.

Mediation is a valuable method to manage disputes for all types of legal

systems, including adversarial systems as practised in both Jordan (a civil law
country) and Australia (a common law country). This thesis provides a comparative
analysis by addressing the similarities and differences in the jurisdictions of Jordan
and Australia. It explores mediation as a structured process used to help the
disputants manage and possibly resolve their dispute. The thesis focuses on the role
of the mediator, and their powers and abilities to achieve their task in this process.
More specifically, it investigates a particular type of mediation known variously as
court-mandated, directed, approved or appointed mediation. For the purpose of this
thesis, the term court-mandated is used. This term means a judge has the power to
refer the case to mediation with or without the parties’ consent.1

Mediation is regarded as a different approach from adversarial dispute

resolution, which occurs through a litigious process. It differs distinctly from the
traditional adversarial judicial proceedings in which a third party makes a decision,

1
Melissa Hanks, 'Perspectives on Mandatory Mediation' (2012) 35 University of New South
Wales Law Journal 929.

1
 and usually, one party is seen as the winner. Mediation is generally conceived as a
voluntary, non-mandatory process for dispute resolution, in which a neutral person
assists the parties through a communicative process to try and resolve their own
dispute to reach a negotiated solution.2 Variations of the basic facilitative approach
exist and are explained further in the thesis. These include models such as facilitative,
settlement, evaluative, and transformative mediation.

The primary objective of carrying out the mediation process is to assist the
disputing parties in creating an atmosphere of understanding; contribute to the
promotion of a culture of dialogue and social peace; urge the parties to participate
positively in the creation of compromises, and bring their understanding of each other
closer.3 Mediation operates within a legal framework to try to mutually resolve a
dispute before an independent third party decision-making process is used. Mediation
is a primary method for managing disputes in the Australian civil litigation arena.4 It
ensures the parties have access to justice in conditions that can be reassuring and
empowering to them, as they are encouraged to determine the outcome to their own
issues and can learn to resolve their disputes more successfully. In Australia,
mediation is so ubiquitous that the movement now prefers to use the label Dispute
Resolution (DR) rather than the initial phrase, Alternative Dispute Resolution
(ADR). Considered to be an established part of the mainstream environment for
legally addressing disputes in Australia, this thesis will adopt the label Dispute
Resolution (DR).

Mediation experienced a number of developments in Australia which have

contributed to the increase in its developement. Boulle 5 has noted that Australia has
a wealth of experience in using mediation in different disciplines such as labour,
commercial, civil and family disputes, with a now strong acceditation system for

2
See, e.g., Nadja Alexander, 'What's Law Got to Do with It-Mapping Modern Mediation
Movements in Civil and Common Law Jurisdictions' (2001) 13(2) Bond Law Review 2; Bryan
Clark, Lawyers and Mediation (Springer 2012) 15; Kairy Al Btanouny, Mediation as Alternate
Dispute Resolution in Civil and Commercial Disputes (Dar Al Nahda, 2012) 30; Leonard
Riskin, 'Decision Making in Mediation: The New Old Grid and the New New Grid System'
(2003) 79(1) The Notre Dame Law Review.
3
Laurance Boulle and Nadja Alexander, Mediation Skills and Techniques (LexisNexis
Butterworths, 2 ed, 2012).
4
Alexander (n 2) 2; David Hill and Peter Waters, 'Alternative Dispute Resolution in Australia
for Insurance Related Disputes' (1994) 6(2) Insurance Law Journal, 2.
5
Laurance Boulle, Mediation Principles, Process, Practice (LexisNexis Butterworths, 3rd ed,
2011) 349.

2
 mediators.6 Mediation was initially advanced in the Australian Commercial Disputes
Center (ACDC), established in New South Wales in 1986, to solve commercial
disputes in that state, and it then spread to other states.7 This experience has helped
to resolve immeasurable minor commercial disputes informally outside the court, to
save time and promote commercial goodwill. Clark8 states that Australia is ‘a
trailblazer’9 in developing mediation, and it has become a part of all Australian
jurisdictions at least from the mid-1980s.10

In 1995 the Commonwealth Attorney-General established the National

Alternative Dispute Resolution Advisory Council (NADRAC) as a powerful
independent advisory body to assist the government by generating research and
publications advancing the pursuit of mediation. NADRAC was described as an
independent institution,11 devised to develop the DR system in Australia. This body
advanced mediation through various valuable reports, for example The Resolve To
Resolve Report,12 and by developing a training and accrediation system.13 The latter
development was important to the achievements of DR in Australia, as it led to the
establishment of the National Mediator Accreditation System (NMAS) in 2007
(updated in 2015) to create a standard for regulating practitioners in mediation.14

Commonwealth legislation was introduced as a result of the NADRAC report

Resolve to Resolve in 2009,15 which aimed to clarify the main features of DR, identify
current issues for DR, and suggest suitable approaches for ‘consistency [in] the DR

6
Ibid.
7
Hilary Astor and Christine Chinkin, Dispute Resolution in Australia (LexisNexis Butterworths,
2002).
8
Clark (n 2) 12.
9
Ibid.
10
Alexander (n 2) 2.
11
Clark (n 2) 14 ; Lillian Corbin, Paula Baron and Judy Gutman, 'ADR Zealots, Adjudicative
Romantics and Everything in between: Lawyers in Mediations' (2015) 38 University of New
South Wales Law Journal 492; Tania Sourdin, 'Disputes Against Professionals' (Conference
Paper, National Alternative Dispute Resolution Advisory Council (NADRAC) Business
Conference, 2003).
12
National Alternative Dispute Resolution Advisory Council (NADRAC), 'The Resolve to
Resolve – Embracing ADR to Improve Access to Justice in the Federal Jurisdiction ' (2009).
13
Clark (n 2) 14.
14
Tania Sourdin, Alternative Dispute Resolution (Thomson Reuters, 4th ed, 2012) 2; David
Spencer and Tom Altobelli, 'Dispute Resolution in Australia' (2005) 139 Cases and Materials,
1. See, National Mediator Accreditation System) NMAS updated in July 2015.
<https://www.msb.org.au/sites/default/files/documents/NMAS%201%20July%202015.pdf>.
15
See, (NADRAC) (n 12).

3
 practice and supporting innovation, flexibility and creativity in DR’.16 The Civil
Dispute Resolution Act 2011(Cth) came about as a result of NADRACs report, and
it has imposed on parties a requirement to show to the court that they have taken
‘genuine steps’ to resolve their dispute before a court will hear the matter.17 This has
been a top-down approach by government, legislating to create a cultural shift within
an adversarial dominated legal culture.

On the other hand, mediation in Jordan is a more recent phenomenon in civil

and commercial disputes. Jordan has adopted legislative instruments introducing
mediation in the law of magistrate courts, civil status laws and labour law, as an
alternative method to litigation for resolving disputes before a court makes a third
party determination.18 Mediation was mooted in 1995 in a conference in Amman
between the Jordanian Bar Association and the American Bar Association.19 In 2003,
Jordan adopted its first mediation legislation offering an alternative way of managing
disputes. This was done through a limited pilot in the area of Amman, Jordan. The
initial law of 2003 was amended with new laws introduced three years later, and then
again in 2017.20

Mediation as a method of dispute resolution has a deep-rooted tradition in

Jordan, in the form of Beoudin tribes holding a special council to solve their
dispute.21 Through this tradition, parties use a tribal elder, who is a high ranking third
party held in high societal esteem, to bring them together in settlement of disputes
without violence. This is particularly when crimes have been committed when crimes
have been committed, or compensation is required due to criminal damage. This

16
National Alternative Dispute Resolution Advisory Council, 'ADR Terminology : A Discussion
Paper' (2002) Commonwealth of Australia .
17
See, e.g., Lukas Wiget, 'Compulsory Mediation as a Prerequisite before Commencement of
Court Proceedings-Useful Requirement to Save Resources or Waste of Time and Money?'
(2012) University of South New Wales Law Research Paper <
https://ssrn.com/abstract=2157385 >
18
This study focuses on addressing mediation process in Jordan under the mediation Act, which
was introduced in 2006. This thesis will not cover earlier reconciliation law in the Magistrates
court, which gave the Magistrate a role in bringing the parties together through reconciliation
which is not the mediation process addressed in this thesis.
19
Basheer Alsaleeby, Alternative Disputes Resolution (Dar Wael Publishing and Distribution 1ed,
2010) 33; Ayman Masa'deh, 'Mediation as a Means of Settling Civil Disputes in Jordanian
Law' (2004) 20(4) Yarmouk Research Journal 44.
20
The Mediation for Settlement of Civil Disputes Act, and its amendment (No 12) 2006 (Jor)
('Jordanian Mediation Act 2006').
21
Mohammad Abu Hassan, 'Tribal Judiciary in Jordan ' Publications of the Jordan History
Committee; Gassan Al-Tall, Tribal Reconciliation between Theory and Practice (1st ed, 1997).

4
 process is well known as Wassata or Al Suleh.22 While this is often referred to as a
form of mediation, it is really better described as an arbitration by a tribal elder after
holding an inquisitorial-like process. This customary approach will be addressed
further in chapter 4. Australia23 and Jordan, through legislation, now encouraged
parties to attempt mediation as a more efficient mechanism for managing disputes
pre-litigation.

Limited research has been carried out evaluating the law of mediation in Jordan
in the last decade.24 Insufficient attention has been given to defining the process,
explaining the features of mediation and explaining the procedure in general.25 Al
Qatawneh26 has addressed mediation as the new Dispute Resolution in Jordan and
has focused on the analysis of the mediation system, suggesting that this law may
need more attention from the Jordanian legislator because the roles of the lawyer and
mediator are not operating as well as anticipated.27 According to Rashdan,28 the
mediation system in Jordan needs administrative and legislative restructuring
because there are significant possibilities to improve the uptake of mediation.29 Just
one of the major problems for mediation in Jordan explored in this thesis, for
example, is the lack of educational awareness of the possibility of using mediation
by citizens.

By studying the development of mediation practice in Australia and Jordan it is

anticipated the mechanisms that will assist with the experience and in improving its
future delivery, for Jordon will be unearthed. Issues that remain part of mediation
practice in Australia are also investigated in order to refine awareness of ways to
assist in the development of further growth in mediation in Jordan.

22
See, e.g., Abdallah Hamadneh, 'The Role of Mediation in Conflict Resolution, the Jordanian
System as a Model, Comparative Study' (2016) Center for Doctoral Studies (CED), 50.
23
Patricia Bergin, 'The Objectives, Scope and Focus of Mediation Legislation in Australia' (2013)
2(49) Journal of Civil Litigation and Practice.
24
Bakr Abd-Fatah Al-Sarhan, 'Mediation on the Hands of the Mediator Judge: The Concept,
Importance and Procedures' (2009)(1) Jordanian Journal in Law and Political Science 57.
25
Alsaleeby (n 19) 50.
26
Mohammad Ahmad Al-Qatawneh, 'Mediation in Settlement the Civil Disputes ' (LLM Thesis,
Mutah University, 2008) 55. See also, Adel Allouzy, 'Mediation in Settling Civil Dispute in
Jordanian Legal System ' (2006) 2(21) Mu'tah Journal for Research and Studies, 261.
27
Al-Qatawneh (n 26) 55.
28
Ali Mahmoud Al-Rashdan, Mediation in Settlement the Disputes (Dar Al-Yazoury Scientific
for Publishing, 2016). See also, Masa'deh (n 19) 44; Allouzy (n 26) 261.
29
Al-Rashdan (n 28) 15.

5
 1.1 Literature Review

Mediation has been suggested as one of the most useful processes for managing
disputes in both Australia30 and Jordan.31 Mediation has several advantages over
litigation: savings in the costs of using litigation, quicker resolution or management
of disputes, greater options development owned by the parties for managing a dispute
leading to increased party satisfaction and empowerment, and improved interaction
between parties assisting in maintaining their relationships.32 Crucial pillars of
mediation philosophies are key to understanding their workings. These are outlined,
along with the models generally used in mediation through this literature section.

1.1.1 Mediation Hallmark Philosophies

The following identifies the philosophical hallmarks that play a vital role in
supporting the success of mediation. These hallmarks are confidentiality,
voluntariness, empowerment, neutrality and parties providing their own solutions.33
These philosophies are applicable in both Australia and Jordon.

Confidentiality generally means that any evidence or discussions that occur

during mediation may not be used in any subsequent court proceedings. The intention
is to create an environment that aims to encourage parties to communicate freely
without any potential for damage in later court cases.34 Confidentiality secures
information disclosed in the mediation to reduce the fear that it could subsequently
be used against a party. This is based on a public policy principle that encourages

30
Mary Anne Noone and Lola Akin Ojelabi, 'Ethical Challenges for Mediators Around the Globe
: An Australian Prespective' (2014) 45 Washington University Journal of Law and Policy.20,
144.
31
Alsaleeby (n 19) 26.
32
Noone and Ojelabi (n 30) 144; Jacob Varghese and Lee Taylor, 'Mediating Australian Class
Actions' (2015) 2(2) Australian Alternative Dispute Resolution Law Bulletin 3.
33
David Spencer, Principles of Dispute Resolution (Thomson Reuters, 2nd ed, 2016) 84-101.
34
See e.g. The Evidence Act 1995 (Cth) s 131 ( Evidence Act ').

6
 disputes to be settled quickly and with the least disharmony and disruption.35
Protecting open and honest discussions and disclosure can ensure the best
opportunity for settlement. However, this public policy is in tension with another
public policy, which is the right of the court to have all the evidence that is needed
to enable the court to reach a fair decision through the process of disclosure. Pryles36
summarised the tension between the importance of mediation confidentiality to
encourage disclosure of the information and to encourage settlement, and the ability
of courts to have all relevant evidence:

Mediation confidentiality is seen as important in order to encourage

disputing parties to negotiate with each other and achieve a settlement
of their dispute. This is regarded as a matter in the public interest to
avoid litigation … The second consideration is one which inclines
against confidentiality in mediation. It rests on the importance, in a
trial before a Judge … of having all the relevant evidence produced
so that a fair decision can be reached.37

In Australia, this granted privilege is secured by the court according to which it

can refuse any evidence discussed in the mediation session to support the mediation
process between the parties. Spencer38 states that generally ‘Australian courts have
prevented evidence being introduced of matters discussed at mediation pursuant to
confidentiality agreements in contracts and confidentiality provisions in statutes.’39
The Evidence Act 1995 (Cth) s 131 provides an example of a legislative statement,
setting out the general principle that it is not allowed for the disputants to present any
information or documents in court that were presented in an attempt to mediate the
matter in dispute.

However, there are a number of grounds that require disclosure of otherwise

confidential information. These include where the parties choose to disclose

35
Williamson ν Schmid (1998 ) 2 Qd R 317 ('Williamson ν Schmid'). See, Vicki Vann,
'Confidentiality in Court-Sponsored Mediation: Disclosure at your own Risk?' (1999) 10(3)
Australian Dispute Resolution Journal 195-205.
36
Michael Pryles, 'Mediation Confidentiality in Subsequent Proceedings' (Conference Paper,
International Congress and Convention Association (ICCA) Conference, 2004) quoted in Joe
Harman, 'Mediation Confidentiality: Origins, Application and Exceptions and Practical
Implications' (2017 ) 28 Australasian Dispute Resolution Journal 106, 109.
37
Pryles (n 36) quoting in Harman (n 36) 109.
38
Spencer (n 33) 86.
39
Ibid.

7
 information that has not been treated as confidential, or where it may be used to
qualify other evidence, may prove a deliberate abuse of power, or in a dipsute as to
costs in the matter. For instance, it is allowed to use a document that has been
disclosed in the mediation process as evidence in the court if the disputants have
expressed or implied consent to use it. Arthur40 adds that in this case, the parties can
waive the privilege of confidentiality, ‘by stating that part of their conversation is off
the record while the rest is not.’41 Also, this law allows for the viewing of any
document, which has been disclosed in the mediation process by the court, when this
document relates to the commission of an act that results in a civil penalty on the
person,42 oris necessary to determine liability for costs.43 Therefore, confidentiality
cannot always be assured as stated, due mainly to the public policy exception
requiring the discovery of evidence in courts.

The case law is varied and depends on the facts of individual cases and the type
of dispute attracting the application of specialised legislation. While case law is
related to the different dispute areas where mediation is used and relies on
interpretation of the specialised legislation, the focus in this thesis is not in the
different families of law but rather approaches mediation from a helicopter view in
the civil law arena. So, consideration is given to case law thatis releavnt to the
mediation process acknowledging it may nevertheless be specific to the disputing
circumstances.44 For instance, a number of cases have allowed evidence from
mediation when a question of costs arises and a party raises prior offers made during
the mediation.45 Boulle46 has noted that the court is the adjudicator between the two
public policies and the cases, on balance tend to favour discovery of evidence. This
is understandable as the court is the adjudicator on the matter and may require the
evidence for it to be able to decide a matter.47 Thus, even though the public policy in
Australia respects the confidentiality of the mediation process to support settlement,

40
John Arthur, 'Confidentiality and Privilege in Mediation' (2015) Australian Alternative Dispute
Resolution Law Bulletin 91.
41
Ibid.
42
Evidence Act, s 131 (2) (J).
43
Evidence Act, s 131 (2) (H).
44
Spencer (n 33) 87.
45
See e.g. Westren Areas Exploration Pty Ltd v Streeter [No 2] (2009) WASCA 15 ('Westren
Areas Exploration Pty Ltd v Streeter [No 2]').
46
Boulle (n 5) 714.
47
Ibid.

8
 the court is able to discover the best evidence to make a determination. This involves
the court in an act of balancing public policy tensions and it is really decided on a
case by case basis, taking account of the relevant civil procedure and applicable case
law and legislation.

Jordanian law has also addressed this philosophy clearly with the law stating that
the parties can reveal any document or information, that will help them to settle their
dispute peacefully, without fear of it being used subsequently in the court. 48 As in
Australia, the mediator also may reveal some information to the court as they are
required to provide a report to the court to say that the parties attended and attempted
the mediation of their dispute. Usually this report will not disclose any detail or
sensitive information.49 The Jordanian legislature has not specified what is to be
contained in this report other than whether the process succeeded or failed.50 In both
countries, a contract written up as part of a mediation settlement is not confidential
because if a dispute arises out of it, the court will have to see the terms of the
agreement to decide whether it has been breached.51 Just how assured confidentiality
is for parties remains open to interpretation and as such will remain an issue of
complexity in both countries.

Voluntariness is a second hallmark philosophy, meaning that parties enter into

the process in good faith with a genuine desire to participate in the process.52 This
hallmark is seen as an essential pillar in the mediation process because it guarantees
entry by parties wishing to genuinely settle their dispute. The parties can leave
voluntarily without any negative consequences and take up the option of litigation at
any time.53 The voluntary philosophy underpins empowerment of parties involved.

48
Jordanian Mediation Act 2006, art 8.
49
See e.g. The Family Law Act 1975 (Cth) div 3 s 10H ('The Family Law Act').
50
Jordanian Mediation Act 2006, art 7.
51
See generally, Peter Condliffe, Conflict Mangement: A Practical Guide (LexisNexis
Butterworths, 5th ed, 2016).
52
See, e.g. Jennifer David, 'Designing a Dispute Resolution System' (1994) 1(26) Commercial
Dispute Resolution Journal at 32-33; Richard Ingleby, 'Compulsion is not the Answer' (1992)
27(17) Australian Law News. See, e.g., Bobette Wolski, 'Voluntariness and Consensuality:
Defining Characteristics of Mediation?' (1996) 15(3) Australian Bar Review, 1; Allan Barsky,
Conflict Resolution for the Helping Professions: Negotiation, Mediation, Advocacy,
Facilitation, and Restorative Justice (Oxford University Press, 2016) 241.
53
Teresa Moore, 'Mediation Ethics and Regulatory Framework' (2017) 4(1) Journal of Mediation
and Applied Conflict Analysis 543-551.

9
 However, Australian courts can order mediation with or without the consent of
parties if they consider it necessary.54 Mandatory mediation presents as a discrepancy
to voluntariness because the court requires the parties to participate in mediation.
Astor and Chinkin55 state that when the parties are obliged to attend mediation, this
hallmark may be compromised or even destroyed.56 Dearlove,57 on the other hand,
suggests that this philosophy ‘prevents the mediator from being intrusive by
continually reminding the parties of the spirit of the process.’58 Mahoney59 also
points out that mandatory mediation may not contradict this hallmark.60 These
arguments suggest the overarching purpose of voluntariness in mediation is not
jeopardised because any settlement is still optional.61 In contrast, a Jordanian court
cannot force the parties to use the process unless the parties indicate that they have a
desire to use mediation.62 This is a clear difference between the two countries.

Empowerment, is a third hallmark of mediation. It ensures the parties have

greater control over their dispute, that power imbalance is addressed so they can bring
all theirconcerns to the dispute, generate options, and control the outcome.63
Empowerment is described as the parties choosing to take responsibility for working
on their own solution.’64 This means the parties have control over both the input and
output of their dispute management because it is a voluntary process. Ensuring any
power imbalance is addressed enables the parties to determine, create and develop

54
See e.g. Queensland Civil and Administrative Tribunal Act 2009 (Qld) div 3 s 75(1)
('Queensland Civil and Administrative Tribunal Act '); The Civil Dispute Resolution Act 2011
(Cth) pt 2 s 6 ('The Civil Dispute Resolution Act'); Farm Business Debt Mediation Act 2017
(Qld) div 3 s 17 (2) ('Farm Business Debt Mediation Act '); The Civil Procedure Act 2005
(NSW) s 26 (1) ('The Civil Procedure Act '); The Civil Procedure Act 2010 (Vic) pt 2.3 s 19
('The Victorian Civil Procedure Act ').
55
Astor and Chinkin (n 7) 273.
56
Ibid, 273.
57
Grant Dearlove, 'Court-ordered ADR: Sanctions for the Recalcitrant Lawyer and Party' (2000)
11 Australian Dispute Resolution Journal, 16; Michael Black, 'The Courts, Tribunals and
ADR: Assisted Dispute Resolution in the Federal Court of Australia' (1996) 7 Australian
Dispute Resolution Journal 138.
58
Dearlove (n 57) 16.
59
Krista Mahoney, 'Mandatory Mediation: A Positive Development in Most Cases' (2014) 25
Australasian Dispute Resolution Journal 120.
60
Ibid.
61
Ibid, 121.
62
The Civil Law Act 1976 (Jor) ('Jordanian Civil Law Act'); Black (n 57) 138.
63
Donna Cooper and Rachael Field, 'The Family Dispute Resolution of Parenting Matters in
Australia: An Analysis of the Notion of an Independent Practitioner' (2008) 8 Queensland
University of Technology Law and Justice Journal 158.
64
Albie Davis and Richard Salem, 'Dealing with Power Imbalances in the Mediation of
Interpersonal Disputes' (1984) Mediation Quarterly, 17.

10
 their mutually satisfactory resolution and to preserve their future relationships.65 It
also models a communication that can lead to a more harmonious approach to any
future disputes. The issue for this hallmark philosophy occurs when the mediator
adopts a model other than the facilitative model, described below, and uses the model
and process in a way that makes the parties feel they have not reached their own
solution. Where party power imbalance is not countered they may feel compelled to
comply with the mediators' persuasion.66 This can occur in court-mandated mediation
if a less facilitative model 67 is used such as an settlement model,68 in which limited
options are generated that rely heavily on monetary settlement or an evaluative model
that relies heavily on the meditors advice.69 Therefore, both the model of mediation
and mediators’ styles can affect just how much empowerment the parties experience.
Certain models allow greater intervention in the substance of the dispute to move it
to settlement and this model can be deliberately chosen by the parties. If this is freely
done then perhaps there is still some empowerment, but the parties then choose to
give over some of their ability to suggest options for an outcome.70 Douglas 71

contends the empowerment requires that no advisory or determinative role should be

adopted and instead mediators should assist in managing the mediation process
whereby the participants agree upon outcomes.72 A meditor can support a weaker
party through appropriate communication techniques that enables the party to
negotiate mutually so the parties power is balanced.73 Empowerment, therefore,
varies depending on how parties are assisted in achieving a suitable outcomes.

65
Jacob Bercovitch and Scott S Gartner, 'Is there Method in the Madness of Mediation? Some
Lessons for Mediators from Quantitative Studies of Mediation' (2006) 32 International
Interactions 329.
66
Bornali Borah, 'Being the Ladle in the Soup Pot: Working with the Dichotomy of Neutrality
and Empowerment in Mediation Practice' (2017) 28 Australasian Dispute Resolution Journal
98.
67
See Chapter I, p. 20 for a description of this model.
68
See Chapter 1, p. 19 for a description of this model.
69
See Chapter 1, p. 24 for a description of this model.
70
See further, Rachael Field, 'Mediation Ethics in Australia-A Case for Rethinking the
Foundational Paradigm' (2012) 19 James Cook University Law Review 41; Susan Douglas,
'Neutrality, Self-Determination, Fairness and Differing Models of Mediation' (2012) 19 James
Cook University Law Review 19-40; Laurence Boulle and Rachael Field, 'Re-appraising
Mediation's Value of Self-determination' (2020) 30 Australasian Dispute Resolution Journal
96.
71
Douglas (n 70) 37.
72
Ibid
73
See further, Angela Cora Garcia, Kristi Vise and Steven Whitaker, 'Disputing Neutrality:
When Mediation Empowerment is Perceived as Bias' (2002) 20(2) Conflict Resolution
Quarterly 205-230.

11
 A fourth hallmark is neutrality, more recently considered impartiality, which
means there can be no procedural inequality or ‘bias, prejudice, or favouritism toward
any party.’74 As a term, neutrality has been abandoned in Australia in favour of the
phrase impartiality, because demanding a mediator to be neutral is an unrealistic
demand of any human, and it is considered a more realistic demand to require an
impartial approach.75 The mediator has considerable power in mediation and cannot
be purely neutral because ‘they are human beings with their own perspectives and
biases.’76 Impartiality is identified as ‘the absence of bias due to the more subtle
impact of a mediator’s personal values, preferences, and preconceptions.’77 This
requires enabling the parties to be free of partial influence in reaching their mutual
solutions. Spencer and Hardy78 state that impartiality is ‘ensuring that any outcome
reached is one that is self-determined by the parties.’79 The concept of impartiality
requires the mediator’s opinion not affect the mediation’s outcome. Instead, the
mediator must protect the process such that their personal values, preconceptions,
and preferences do not distort the outcome.80

Impartiality is crucial because it is a source of mediation credibility, as the

mediator ensures the parties can feel confident with the process and so have a
conducive environment to help reach a lasting solution.81 However, often the practice
challenges the reality of this expectation as humans also have unconscious bias, and

74
Carol Izumi, 'Implicit Bias and Prejudice in Mediation' (2017) 70 SMU Law Review Journal
681.
75
Jonathan Crowe and Rachael Field, 'The Empty Idea of Mediator Impartiality' (2019) 29
Australasian Dispute Resolution Journal 273-280; Robert Bush and Sally Pope, 'Changing the
Quality of Conflict Interaction: The Principles and Practice of Transformative Mediation'
(2002) 3 Pepperdine Dispute Resolution Law Journal 67; Carol Izumi, 'Implicit Bias and the
Illusion of Mediator Neutrality' (2010) 34 Washington University Journal of Law and Policy
71; Bobette Wolski, 'Mediator Settlement Strategies: Winning Friends and Influencing People'
(2001) 12 Australasian Dispute Resolution Journal 248.
76
Crowe and Field (n 75) 273.
77
Susan Douglas, 'Constructions of Neutrality in Mediation' (2012) 23 Australasian Dispute
Resolution Journal 80-88, 81.
78
David Spencer and Samantha Hardy, Dispute Resolution in Australia: Cases, Commentary and
Materials (Thomson Reuters, 2014) 42.
79
Ibid.
80
See especially, Hilary Astor, 'Rethinking Neutrality: A Theory to Inform Practice - Part 1'
(2000) 11 Australian Dispute Resolution Journal 73; Rachael Field, 'The Theory and Practice
of Neutrality in Mediation' (2003) 22 The Arbitrator and Mediator 79-89; Hilary Astor,
'Mediator Neutrality: Making Sense of Theory and Practice' (2007) 16(2) Social and Legal
Studies 221-239; Ronit Zamir, 'The Disempowering Relationship between Mediator Neutrality
and Judicial Impartiality: Toward a New Mediation Ethic' (2010) 11 Pepperdine Dispute
Resolution Law Journal 467.
81
Shyam Kishore, 'The Evolving Concepts of Neutrality and Impartiality in Mediation' (2006)
32(2) Commonwealth Law Bulletin 221-225.

12
 so it is difficult to achieve this perfection in reality. As Sharma82 argues, ‘[t]he
problem is one of competing principles, between party autonomy and empowerment,
and third-party intervention.’83 Gorrie84 states that the mediator may work, possibly
unconsciously, against agreements that they consider to be unfair, inappropriate or
abusive, instead directing outcomes according to their own preferences.85 Mediators
are required to be conscious of offering ‘sufficient opportunities for voice, justice,
vindication, validation or impact.’86 This is based on a philosophy that aims to enable
the mediator to assist the parties to craft their own resolution.87 Certain models, such
as the evaluative and settlement models, outlined further below, tend to work against
this key philosophy. Where such models dominate, as is the case in Jordon, then this
hallmark is weakened.

The final hallmark is that parties can reach their own solutions. This means not
only that parties are empowered but importantly, that they can create their own
solutions and that this is more likely to be honoured by parties than an imposed
solution, which often favours one party over the other.88 The parties can do best when
the mediator assits them to generate their own options and then helps those parties
‘reality test’ these options in a non-influential manner without imposing their values
upon the parties.89 This aspect is the natural result of applying the previous
philosophical hallmarks of impartiality and empowerment. The parties’ right to craft
their own solutions is limited only by their own creativity and any legal boundaries.
The mediator’s role is to guide the parties through the process. If this hallmark is not
achieved, there is a risk the success of the mediation process and any agreement will
not be sustained.

82
Neha Sharma, 'Mirror, Mirror on the Wall, Is there no Reality in Neutrality after all? Re-
Thinking ADR Practices for Indigenous Australians' (2014) 25 Australasian Dispute
Resolution Journal 231.
83
Ibid, 231.
84
Arthur Gorrie, 'Mediator Neutrality: High Ideal or Scared Cow?' (Conference Paper, National
Mediation Conference, 1995), 34-35.
85
Ibid.
86
Bernard Mayer, Beyond Neutrality: Confronting the Crisis in Conflict Resolution (John Wiley
& Sons, 2004) 29.
87
Donna Cooper, 'The Family Law Dispute Resolution Spectrum' (2007) 18(4) Australasian
Dispute Resolution Journal 234-244, 243.
88
Spencer (n 33) 100.
89
Russell Thirgood, 'Mediator Intervention to Ensure Fair and just Outcomes' (1999) 10
Australasian Dispute Resolution Journal 142.

13
 This overview of the hallmark philosophies suggests that each can be challenged
by practical realities. It is found that legislatures, courts and mediators respond to
these issues in various ways.90 This research explores these challenges and issues in
both Australia and Jordan to identify best practices in addressing the integration of
mediation into the respective legal systems, while maintaining loyalty to the hallmark
philosophies of mediation. It is clear that the philosophies have varied success and
influence depending on the different models by which mediation can occur and which
are now outlined.

1.2 Mediation Models

Jordanian law describes the process of mediation as court-mandated mediation.

This process is activated after a case is brought before a Magistrate judge or a judge
of Case Management.91 Generally, the judge will decide if the case needs to be
referred to mediation or not taking into account the parties’ consent. Also, the
disputants can inform the judge that they want to solve their dispute via mediation.
This is is regulated by the Mediation for Settlement of Civil Disputes Act, 2006 art 3,
as amended. In such a situation, the mediator can be a mediator judge, or the dispute
can be refered to a private mediator through the mediation administration system.92
The private mediator, who could be a lawyer, professional dispute management
practitioner, psychologist, or retired judge, may still prefer to use the more directive
evaluative model, based on their expertise in the dispute field and focus on the
disputants' rights.93 This court-mandated mediation tends to be based on the
evaluative model. 94 According to art 6 of the Jordanian Mediation Act, the mediator
can take the appropriate measures to bring the disputants' views closer in order to
reach a mutually acceptable solution. Furthermore, this article gives the mediator the

90
John Woodward, 'Reflections on a Work in Progress: Some Observations from the Field'
(2016) The Australian Dispute Resolution Research Network.
91
See, Steven Gensler, 'Judicial Case Management: Caught in the Crossfire' (2010) 60 Duke Law
Journal 669-744. This case management judge plays an important role in encouraging the
disputants to refer their dispute to one of the dispute resolution processes that is available in
Jordan such as mediation, reconciliation, or arbitration to put an end to their disputed matters.
See Jordanian Civil Procedures Act. art 59.
92
Jordanian Mediation Act 2006, art 3.
93
Khaled Ta'amneh, 'Mediation as an Alternative Commercial Disputes Resolution in Jordanian
Law' (LLM Thesis, Jadara University, 2011) 10.
94
Al-Rashdan (n 28) 50; Alsaleeby (n 19) 81.

14
 power to express his or her opinion, evaluate the evidence, present the legal evidence,
case law and other procedures that facilitate the mediation.95

However, as there is no accreditation system in Jordan as in Australia, there is

no clear guidelines as to which model private mediators use.This means that they
could use their expertise in solving the dispute through advising the parties what they
would likely get if their rights in the case were to be decided by the judge. This may
lead to bringing an adversarial tone into the mediation process. However, some
flexibility and credibility remains in this process given the disputants still have the
right to appoint their own private mediator and resolve a matter in confidence.96 The
lack of education of the citizen in the different models, nevertheless, impacts on their
ability to make informed choices.

These challenges also remain for the process in Australia. They revolve around
issues such as differences in mediator styles and the citizens’ understanding of what
to expect in mediation and how the different models work. The mediator may practice
a range of styles depending on the case and may use a number of them within the one
mediation session. These styles draw on the different models and vary between the
97
level of mediator intervention in influencing the parties’ resolution. Boulle has
identified four models of mediation: settlement, evaluative, transformative and
facilitative models. Other models exist, such as creative solutions used through
adopting critical race theory, and developing a one-text document that allows the
parties to integrate their version of a dispute into one mutualised story that can then
be addressed as a problem to solve.98 The latter is sometimes referred to as the
narrative mediation model.99 Creative dispute management practitioners are evolving
new ways of approaching mediation. The main models are outlined here, in order to
conceptualise these across a spectrum of possibilities. Alexander’s meta-model
approach is probably the best example of the range of possible models and as such
is adopted in this thesis.

95
Jordanian Mediation Act, 2006 art 6.
96
Jordanian Mediation Act, 2006 art 3(A).
97
Boulle and Alexander (n 3)15.
98
Rauf Garagozov and Rana Gadirova, 'Narrative Intervention in Interethnic Conflict' (2019)
40(3) Political Psychology 449-465; John Winslade, Gerald Monk and Alison Cotter, 'A
Narrative Approach to the Practice of Mediation' (1998) 14(1) Negotiation journal 21-41.
99
Condliffe (n 51) 293.

15
 Alexander100classifies models of mediation according to two dimensions,
intervention and interaction, each describing the relation between the mediator and
parties (see figure 1).101 The interaction dimension focuses on the way parties interact
in using negotiation and bargaining to manage their dispute. This dimension consists
of a range of positional discourses from bargaining, and interest-based negotiation,
to dialogue. Each category has unique objectives and can produce different results.
The aim of positional bargaining discourse is ‘to achieve a mutually acceptable
settlement of the dispute as defined in legal or positional terms … in which parties
move from opening positions in ever-decreasing incremental concessions towards
compromise.’102 Interest-based negotiation discourse aims to concentrate on
disputants’ interests and needs, rather than their claims and legal rights, by engaging
them in negotiation about future-focused issues,103 dialogue discourse aims to focus
on the nature of the interaction between the disputants through encouraging them to
change their communication patterns and to thus heal their relationships at a deeper
level.104

The intervention dimension concentrates on the way the mediator intervenes in

the process, and how much and what style of assistance they offer the parties in
addressing their dispute.105 The mediators intervention forms the basis for identifying
the model being adopted. The mediator intervention may, in a settlement or
evaluative model, include providing technical, legal or general advice to the parties
or evaluating the parties' position and even suggesting options for agreement within
the mediation.106 If they choose to direct the process and empower the parties to
make their own decisions in the dispute, it reflects a facilitative model. Alexander’s
meta-model will be referred to in this research to demonstrate which model of
mediation is practised, and what advantages and issues a model may bring, and how

100
Najda Alexander, 'The Mediation Metamodel: Understanding Practice Around the World'
(2008) 26(1) Conflict Resolution Quarterly, 20.
101
Ibid.
102
Ibid 5.
103
Ibid 6.
104
Ibid.
105
Najda Alexander, 'The Mediation Metamodel: Alternative Methods Of Delivering Justice'
(2008) 26(1) Dispute Resolution Quarterly, 1; John Michael Haynes, Gretchen Haynes and
Larry Sun Fong, Mediation: Positive Conflict Management (Suny, 2004).
106
Nadja Marie Alexander, Global Trends in Mediation: Riding the Third Wave in Global Trends
in Mediation (Kluwer Law International 2006).

16
 they are addressed. This, in particular, is considered from the perspective of the
hallmarks of mediation outlined in Figure 1.

Figure 1 : Alexander’s Mediation Meta-Model107

Process Settlement Facilitative Transformative

Intervention Dimension

Mediation Mediation Mediation

Positional Bargaining Interest-Based Negotiation Dialogue

Expert Advisory Wise Counsel Tradition-Based

Mediation Mediation Mediation

Interaction Dimension

The mediation meta-model, as presented in Figure 1, breaks down into six

practice models of mediation: settlement mediation, facilitative mediation,
transformative mediation, expert advisory mediation, wise counsel mediation, and
tradition-based mediation. The meta-model provides useful constructs for the
mediator that guide them in assessing the flexibility and creativity that their
mediation is said to offer. Hybrid mediation may occur, for instance, if the mediator
starts with expert advice, which aims to deliver efficient dispute management and
access to justice through encouraging distributive negotiation discourse by giving
advice to the parties.108 The mediator may discover that the parties want to focus on
settling the dispute instead of pursuing protection of a future relationship, as they will
not be having an ongoing relationship.109 In that case, the mediator can move to
settlement mediation to efficiently enable parties to reach a satisfying confidential
settlement.110 If the mediator starts with a facilitative mediation model by
empowering the parties and focusing on their needs and interests, the mediator may
discover that the parties seek more guidance and can move to the style of wise

107
Alexander, (n 100) 20.
108
See: Leonard Riskin, 'Understanding Mediators' Orientations, Strategies, and Techniques: A
Grid for the Perplexed' (1996) 1 Harvard Negotiation Law Review 7.
109
Christopher Moore, The Mediation Process: Practical Strategies for Resolving Conflict (John
Wiley and Sons, 2014).
110
Astor and Chinkin (n 7) 137.

17
 counsel mediation. The mediator may in this manner move between models by
providing greater intervention in the form of advice. The wise counsel mediation
will provide advice on the problem in terms of identifying interests, options, and
solutions, but the final decision remains with the parties.111

Alexander also describes the tradition-based model and this makes Alexander’s
meta-model appropriate in this thesis, as it addresses the Indigenious cultures in both
Australia and Jordan. If the mediator is hired to solve a dispute between parties from
an Indigenous community, the mediator may use the tradition-based model, which
aims to restore stability and harmony to the community, industry or group, based on
a concept referred to as restorative justice.112 Tradition-based mediation is used in
communities that are characterised by strong kinship ties, which preference the
community's values, interests and needs over the individual's needs and interests. The
mediator will lead a process of open-ended dialogue among participants, while
acknowledging necessary ritualised ceremony in front of the community members.113
Accordingly, Alexander's meta-model offers a useful framework for the mediator to
reflect and inform on the appropriate mediation practice to utilise in each particular
dispute.

The Australian National Mediator Standards, first established in 2007 and

modified in 2015, provide mediators with a framework around models of practice.114
In 2007 the standards applied the facilitative model as the most supported approach
to an interest-based mediation. However, by 2015 the standards had widened to
acknowledge that there was a range of models of mediation in use across Australia.
The 2015 Standards refer to a facilitative or blended process.115 The blended process
means that mediators may use a combination of styles from different models in the

111
Alexander, (n 100) 20.
112
Ibid.
113
See generally: Nabil Antaki, 'Cultural Diversity and ADR Practices in the World' in Jean-
Claude Goldsmith, Arnold Ingen-Housz and Gerald Pointon (eds), ADR in Business: Practice
and Issues across Countries and Cultures (Kluwer Law International 2011).
114
Barbara Wilson, 'Mediation Ethics: An Exploration of Four Seminal Texts' (2010) 12 Cardozo
Journal of Conflict Resolution 119, 120.
115
Samantha Hardy and Olivia Rundle, 'Applying the Inclusive Model of Ethical Decision Making
to Mediation' (2012) 19 James Cook University Law Review 70-89, 72.

18
 same mediation.116 As Sweify117 states, ‘mediators might begin the process using
facilitative techniques to enhance the disputants’ negotiation, and once the parties are
about to reach an impasse, they might shift to an evaluative style.’118

Both Boulle and Alexander refer to four well-accepted models. Each of these is
now described in greater detail, as these will be the most referenced throughout this
thesis.

1.2.1 Settlement Mediation Model

The settlement model, as illustrated in Figure 2, is often adopted by lawyers,

based on a simple limited outcome, and based on monetary compensation in a
bargaining process. This model can engender reality testing of parties’ positions to
move them to compromise through various forms of subtle, or not so subtle,
persuasion from the mediator, as well as through the parties practising bluff and
haggling approaches. Ultimately, the parties are still considered to be in control of
accepting or rejecting an outcome.119 Settlement mediators are often legal
practitioners whose expertise is in their use of skills to produce offers, concessions,
and agreements.120

Figure 2: Settlement Model121

Outline of Issues

Negotation/ bargaining

Agreement

116
Australian National Mediator Standards, Practice Standards, 2007, ('ANMS Practice
Standards').
117
Mohamed Sweify, 'Mediator's Proposal and Mediator's Neutrality: Finessing the Tension'
(2017) 28(2) Australasian Dispute Resolution Journal 129-134.
118
Ibid.
119
Boulle and Alexander (n 3)15; Condliffe (n 51) 279; Riskin (n 2) 3; Chris Lenz, 'Is Evaluative
Mediation the Preferred Model for Construction Law Disputes?' (2015) Thomson Reuters 134.
120
Alexander, 'The Mediation Metamodel: Understanding Practice Around the World' (n 100) 11.
121
Researchers own interpretative model of settlement mediation.

19
 1.2.2 Facilitative Mediation Model

The facilitative mediation model is the most commonly supported and adopted
model in Australia.122 The mediator may use this model when the disputants prefer
to protect their future relationship, whether it be business, social or family-related.123
In this model, the mediator controls the process and the parties control the content.124
In other words, facilitative mediators will not advise the disputants about how they
solve their problem nor provide them with legal information about what a court
would do in their particular case. The mediator uses communication techniques to
help the parties express their underlying interests in order to generate a wide array of
options from which a creative solution can then arise.125 The mediator uses this model
to guide the disputants through a process that supports a productive conversation to
settle their dispute.126 Thus, the facilitative mediator will be selected for their
communication skills rather than their expertise in the dispute area. Disputants will
generally have their own legal representatives who will be partisan advisors to assist
parties in reaching their own solution.127 This model follows a seven-stage process,
as illustrated in Figure 3. The stages include: mediator statement, parties’ opening
statement, agenda-setting, exploring the issues and interests, private sessions,
negotiation, and finally reaching agreement.

122
Judith Herrmann and Claire Holland, 'Co-Creating Mediation Models: Adapting Mediation
Practices When Working Across Cultures' (2017) 28 Australasian Dispute Resolution Journal
43-50.
123
Alexander, 'The Mediation Metamodel: Understanding Practice Around the World' (n 100) 12.
124
Zena Zumeta, 'Styles of Mediation: Facilitative, Evaluative, and Transformative Mediation'
(2019) Mediate.com, 1.
125
Susan Nauss Exon, 'The Effects that Mediator Styles Impose on Neutrality and Impartiality
Requirements of Mediation' (2008) 42(3) University of San Francisco Law Review 577-620;
Tony Bogdanoski, 'The Neutral Mediator's Perennial Dilemma: To Intervene or Not to
Intervene' (2009) 9 Queensland University of Technology Law and Justice Journal 26.
126
Sweify (n 117) 132.
127
Alexander, 'The Mediation Metamodel: Understanding Practice Around the World' (n 100) 12;
Bernard Mayer, 'Facilitative Mediation' in Jay Folberg, Ann Milne and Peter Salem (eds),
Divorce and Family Mediation: Models, Techniques, and Applications (Guilford Press, 2004)
29-52.

20
 Figure 3: Facilitative Model 128

Mediator's Understanding and

statement Past
Exploration
Parties' opening

Summary Agenda Setting

Exploration Issue and Interests

Private Session

Joint Negotiation

Agreement
Problem Solving
Resolution Future

The mediator in the opening stage explains the essential aspects of the process
to the parties, for instance the consensual nature of mediation, mediator impartiality,
the process's confidentiality, parties’ empowerment, and the time constraints of the
session. This step aims to check the parties’ understanding of the process and to help
them feel confident in the process, while building comfort and rapport with the
mediator.129 For example, the mediator will explain their role as an impartial
intervener who helps the parties to communicate with each other to discuss the issues
and concerns they wish to discuss. Then, the process will move to the next stage in
which each disputant gets the right to state their story, without interruptions from the
other side.

Then, the mediator will move to the next stage, which is agenda setting. This
stage allows the mediator to draw up an agenda from the concerns raised by the
parties. This step is vital in providing a visible structure for the whole process. It

128
Linda Fisher and Mieke Brandon, Mediating with Families (Thomson, 4th ed, 2018) 25.
129
Condliffe (n 51) 316.

21
 creates a neutral and mutual single list of concerns to problem solve in a manner that
helps separate the issues from the person.130

In the next stage, the exploration of the issues and interests, the mediator assists
the parties through their first direct communication to discuss their understanding of
the issues and to guide them in better understanding each other’s perspectives.131 The
facilitative mediator uses a number of communication techniques, such as open and
hypothetical questioning, reframing and detoxifying language, active listening and
summarising or parahrasing. These techniques assist to ‘frame these issues in a
genuine meaningful and constructive manner to find a formulation of the issues that
all parties can accept.'132 The mediator directs dialogue between the parties to
encourage the developing of options without reaching solutions at this point. The
dialogue aims to engage the parties in collaborative behaviours to generate a number
of possible options based on their creative problem solving that may lead to reaching
a win-win solution.133 The mediator is not only listening to the parties but will also
help the parties to communicate effectively by allowing them to respond in a
constructive way to each other.134

A particularly useful part of facilitative mediation is using the private session.135

In this session, the parties are given time out separately with the mediator. This stage
is important because it allows each party time to privately reflect on what has been
occurring and whether they are achieving what they had hoped to in the session. The
mediator can also help the party reality-test any options that may have been
suggested, and check if they have matters they have not raised yet but would assist
the mediation if they were. The added cloak of confidentiality in this session makes
the parties feel confident to raise issues they felt they could not in the presence of the
other party. This stage focuses on the future relationship and addressing potential
options generated in the exploration as possible ways to manage the issues in dispute.

130
Boulle (n 5) 239.
131
Fisher and Brandon (n 128) 23-24.
132
Mayer, 'Facilitative Mediation' (n 127) 40.
133
James Alfini, 'Evaluative Versus facilitative Mediation: A Discussion' (1997) 24(4) Florida
State University Law Review 919-935.
134
Condliffe (n 51) 331-3.
135
Boulle and Alexander (n 3) 143.

22
 In some circumstances, the mediator may need to move to more than one private
session before the parties can complete their negotiation. 136

After this the joint negotiation session will start whereby the mediator helps the
parties consider the options they have generated and helps reality-test their
workability. A mediator will use different communication techniques during this
phase. There may be more closed questioning, as well as clarifying or hypothetical
questions.

The final stage is the agreement, which ‘allows for the reinforcing of the progress
made by the parties, the finalising and recording of their agreements and listing of
any unresolved issues.’137 If the parties cannot reach an agreement, they usually will
have made progress and can list the issues that are agreed and those that remain.
These issues can either be brought back to further mediation or proceed to litigation.
An option taken at this time is often for the parties to have a trial stage for their best
option, with the possibility of coming back for further refinement at a later stage. A
facilitative mediator will frequently follow up with the parties some time after the
mediation to see that their agreement is holding.

The mediator controls this staged process to guide the discussions between
parties and to engage them in interest-based negotiations;138 thus, they generate their
own options and can reach their own resolution, without the mediator offering
suggested options or settlement outcomes.139 A facilitative mediator concentrates on
parties’ self-determination and allows them to direct the content within the
process.140 If a facilitative model is said to be used, then the mediator who evaluates
the parties’ options overtly, or who determines which solution parties should
consider, is crossing over into the evaluative model.141

136
Ibid 145.
137
Fisher and Brandon (n 128) 24.
138
Donna Cooper and Deborah Keenan, 'A Model to Use When Representing Clients in
Conciliation Conferences in the Queensland Anti-Discrimination Commission' (2018) 29
Australasian Dispute Resolution Journal 126.
139
Laurence Boulle, Mediation: Principles, Process, Practice (LexisNexis Butterworths, 2nd ed,
2005) 43-47.
140
Mieke Brandon, 'Self-Determination in Australian Facilitative Mediation: How to Avoid
Complaints' (2015) 26 Australasian Dispute Resolution Journal, 44.
141
Exon (n 125) 592.

23
 1.2.3 Evaluative Mediation Model

The evaluative mediation model aims to settle the dispute according to the
parties’ rights and legal obligations.142 Shaw143 states that the mediator in this model
can provide ‘the parties advice about strengths and weaknesses of a case … predict
possible outcomes that would be a likely outcome if a court adjudication occured,
and suggesting ways to resolve a dispute.’144 Such mediations are usually conducted
by mediators from a legal background and with legal expertise such as subject
experts, senior lawyers and former judges. The model is chosen by parties because
they seek guidance on the possible legal solutions if the matter were to proceed to
court. This way, they can evaluate their chances of success if they were to proceed.
If this is less than they anticipated, they can then more quickly and privately agree
on a settlement, feeling their legal rights have been satisfied. Laflin145 holds a slightly
different view in suggesting that the role of an evaluative mediator is to recommend
a range of possible legal outcomes that the parties can choose from, and so this
process is less directed by the mediator, using less intrusive techniques, but still
providing advice.146 Evaluative mediation involves the mediator aiming to help the
parties towards a solution according to how a fair legal process would operate.

This model can often be used in court-mandated mediation.147 In such situations,

the mediator can be a judge or court registrar and the parties are often represented by
lawyers.148 The discussion focuses on the law, its interpretation, and the likely
manner by which a court would resolve the dispute. Less emphasis is placed on
parties expressing their emotions and interests, or being able to generate creative
options for management that go beyond those available in the law. In the evaluative
model, mediators may be persuasive in encouraging the parties to adopt the
mediators' view on how to resolve the dispute.

142
Boulle and Alexander (n 3) 15.
143
Exon (n 125) 592 citing Margaret Shaw, 'Evaluation Continuum' (Conference Paper, Meeting
of CPR Ethics Commission, 6 May 1996).
144
Exon (n 125) 592 citing Shaw (n 142) 1.
145
Maureen Laflin, 'Preserving the Integrity of Mediation Through the Adoption of Ethical Rules
for Lawyer-Mediators' (2000) 14 Notre Dame Journal of Law, Ethics and Public Policy 479,
493.
146
Ibid.
147
John Lande, 'Toward more Sophisticated Mediation Theory' (2000) Journal Dispute Resolution
321.
148
Ibid.

24
 This model compromises many of the hallmark philosophies such as impartiality,
party empowerment, and possibly party control over the resolution. In a court-
mandated mediation that adopts an evaluative model, there is the added risk of
compromising voluntariness.149 Exon150 states that when the mediator suggests a
proposal or assesses the parties’ options, it ‘will, in all likelihood, favour one party to
the detriment of the other. Once [impartiality] is jeopardised, so is a party’s trust in the
mediator.’151 However, if the mediators are appointed by parties, it is challenging to
argue mediator impartiality is required, other than to expect that the mediator would
fairly assess the parties’ claims and would suggest solutions based on the law not their
personal values or bias.152 McDermott153 suggests the evaluative mediation model may
affect the parties’ empowerment negatively for two reasons.154 Firstly, the mediator
may engage in unethical conduct if they adopt coercion and pressure in order to be
seen to get a quick resolution, and secondly it may undermine the creativity in the
mediation problem-solving process.155 Indeed the parties are not reaching their
settlement based on their own generated options, and a suggested one can risk
unravelling and thereby generate further disputes. For this reason, mediators adopting
an evaluative approach should be cautious about maintaining an impartial, unbiased
approach in suggesting the potential legal options, and they should take care to give
advice or recommendations without coercing a party.156

149
Ibid.
150
Exon (n 125) 603.
151
Ibid.
152
Sweify (n 117) 131.
153
E Patrick McDermott and Ruth Obar, 'What's Going On in Mediation: An Empirical Analysis
of the Influence of a Mediator's Style on Party Satisfaction and Monetary Benefit' (2004) 9
Harvard Negotiation Law Review 75, 81-82.
154
Ibid.
155
Ibid.
156
Sweify (n 117) 131.

25
 Figure 4: Evaluative Model 157

Issue exploration

Issue assessment

Proposing solutions

Settlement

1.2.4 Transformative Mediation Model

Possibly the furthest removed from an evaluative model is the transformative

model, which tends to have mediators trained in the social sciences, such as
psychology and social workers, rather than law.158 These experts can use a process
model to assists parties to dig into not only their intersts but also their personalities,
communication styles, and the deeper underlying causes of the dispute. To do this,
the model may use psychological tools to help the parties better understand
themselves and the other party.

Often this model will be used where the parties are seeking an ongoing
relationship, by transforming the way they relate to each other to solve their
disputes.159 So, familial disputes, such as between husband and wife or parents and
children, are ideally suited to transformative mediation. This model ‘is a shift away

157
This diagram is developed by the researcher.
158
Horst Zillessen, 'The Transformative Effect of Mediation in the Public Arena' (2004) 7(5)
Alternative Dispute Resolution Bulletin 82. See further, Robert A Baruch Bush, 'Handling
Workplace Conflict: Why Transformative Mediation' (2001) 18(2) Hofstra Labor and
Employment Law Journal 367; Joseph Folger and Robert A Baruch Bush, 'Transformative
Mediation: A Self-Assessment' (2014) 2 International Journal of Conflict Engagement and
Resolution 20.
159
Boulle and Alexander (n 3) 2. See e.g., Mark Dickinson, 'The Importance of Transformative
Mediation to the Internal Workplace Mediation Program' (2011) 22 Australasian Dispute
Resolution Journal 95.

26
 from the problem-solving vision … to a much more interactive, communication-
based view of what a dispute is and what productive changes in a dispute look
like.’160 The model, as illustrated in figure 5, adopts an open communication style
between the parties to craft their own solution through understanding their own and
the other party’s point of view.161 Folger162 confirmed this idea, stating this model
‘shifts from relative weakness to greater strength (the empowerment dimension) and
movement from self-absorption to openness (the recognition dimension).’163 This
approach draws on the mediator’s special expertise in being able to help the parties
to focus on their ability to decide an outcome through better understanding one
another’s perspectives.164 The transformative model can develop parties to become
better human beings, which has a positive outcome for greater harmony within
society.165

According to figure 5, this model aims to help the parties to understand their
respective situation and to improve their relationship through fostering, empowering
and recognition.166 The focus of the model is not so much on achieveing an agreement
or settlement, but instead a transformation in the parties’ relationship through
enhancing empowerment and recognition. In this model, empowering is concerned
with the parties being able to identify their own issues, exploring their potential goals
and seeking their own solutions to problems. This encourages them to have a sense
of strength and take control of their situation. This recognition enables each party to
see and understand how the other party defines the problem and why they seek a
particular solution. The importance of recognition is found when the parties discover
that ‘they can feel and express some degree of understanding and concern for one
another despite their disagreement.’167 The empowerment and recognition play an

160
Joseph Folger, 'Mediation Research: Studying Transformative Effects' (2001) 18 Hofstra Labor
and Employment Law Journal 385, 393.
161
Zumeta (n 124) 1.
162
Folger (n 160) 393.
163
Ibid.
164
Cindy Fazzi, 'The Promise of Mediation: The Transformative Approach to Conflict' (2005)
60(2) Dispute Resolution Journal 88.
165
Robert Baruch Bush and Joseph Folger, The Promise of Mediation: The Transformative
Approach to Conflict (John Wiley & Sons, 2004) 12.
166
Tina Nabatchi, Lisa Blomgren Bingham and Yuseok Moon, 'Evaluating Transformative
Practice in the U.S. Postal Service REDRESS Program' (2010) 27(3) Conflict Resolution
Quarterly 257-289, 261.
167
Bush and Folger (n 165) 14.

27
 important role in formating the transformative mediation model that focus on the
solving disputants’relationship issues with minimal help from the mediator.

Figure 5: Transformative Model 168

The mediator
statement
The parties
statement
The mediator identify key
issues
Exploring the parties' potential
goals
Raising potential solution

Parties trialling solutions phase

Generating parties' recognition

1.3 The Issues Raised

There appear to be four main differences between Jordon and Australia: the first
relates to the legislative approach to encourage mediation; secondly, in Jordan,
mediation is not a step required before proceeding to litigation as it is in Australia;
thirdly, Jordanian lawyers do not have an obligation to inform their client about the
benefits of using mediation in their disputes,and fourthly, the evaluative model tends
to dominate practice in Jordan. These will each be explored further in chapter
4.Increasingly in Australia, the legislature has taken the initiative to make it a

168
This diagram was developed by the researcher after considering these articles: Patricia Franz,
'Habits of a highly effective transformative mediation program' (1997) 13 Ohio State Journal
on Dispute Resolution 1039; Robert A Baruch Bush and Sally Ganong Pope, 'Changing the
Quality of Conflict Interaction: The Principles and Practice of Transformative Mediation'
(2002) 3 Pepperdine Dispute Resolution Law Journal 67; Tina Nabatchi, Yuseok Moon and
Lisa Bingham, 'Evaluating Transformative Mediation in Practice: The Premises, Principles,
and Behaviors of Usps Mediators' (2010) 27(3) Conflict Resolution Quarterly Journal.

28
 requirement that such a process is undertaken by parties to support earlier and
cheaper settlement of disputes.

Australian legislation encourages parties to use mediation as a process that can

staisfactorily end their dispute. Examples include the Civil Dispute Resolution Act
2011 (Cth)169 and Civil Proceedings Act 2011(Qld).170 each requiring disputants to
take ‘genuine steps’ to resolve disputes before instituting certain civil proceedings.
This educates the parties about the alternatives to litigation and encourages them to
engage in these processes.171 Also, the Civil Dispute Resolution Act 2011 (Cth)
section 4 provides further encouragement by imposing on lawyers a general duty to
inform their clients about different dispute resolution processes that can be used
before litigation. This is backed up by the threat of a cost awarded against the legal
representative who does not encourage their client to take genuine steps to resolve
their dispute before going straight into litigation.172 Douglas and Batagol173 confirm
that ‘[l]awyers have a duty to advise and assist clients with the filing of a genuine
steps statement and failure to do so may cause lawyers to be subjected personally to
costs orders’.174 Such legislation encourages the parties to try mediation, which
creates a productive environment for mediation outcomes.

By contrast, the mediation in Jordan is not a step required before proceeding to

litigation. The mediation legislation in Jordan provides for court-mandated
mediation, when the parties consent. It means that after meeting the parties and their
representatives, the judge of the Civil Case Management, or the judge or Magistrate
in the matter, can refer the dispute to a mediator if the parties consent.175 Adopting a
court-mandated mediation without party consent, or as a pre-litigation requirement
would improve the number of cases adopting mediation in Jordan. Further, the
Jordanian law does not impose on lawyers the duty of considering the benefits in
referring a case to mediation.. The judge and lawyer thus have a significant role,

169
Civil Dispute Resolution Act, s 5.
170
The Civil Proceedings Act 2011 (Qld) s 43 ('Civil Proceedings Act ').
171
Greg Rooney, 'The Rise of Commercial Mediation in Australia–Reflections and the Challenges
Ahead' (2016) 3(2) The Journal of Mediation and Applied Conflict Analysis, 2.
172
Civil Dispute Resolution Act, s 12.
173
Kathy Douglas and Becky Batagol, 'The Role of Lawyers in Mediation: Insights from
Mediators at Victoria's Civil and Administrative Tribunal ' ( 2014) 40(3) Monash University
Law Review 758-792.
174
Ibid, 759.
175
Alsaleeby (n 19) 37.

29
 individually, in supporting the parties to consider using mediation to solve their
disputes. In Jordan, however, a judge cannot impose a binding obligation on the
disputants to settle their disputes by mediation; rather, it is a consensual process.176
This could be considered the main reason for the limited uptake of the option of
mediation by disputants in Jordan. Chapter 4 considers this issue in details.

The evaluative mediation model is commonly used by the mediators in Jordan

enabling them to promote the agreement.177 This model may not help the disputants
to improve their relationship, enhance communications through the negotiation
process, or to empower parties to reach satisfying voluntary agreements by
themselves. This model therefore does not support the critical philosophical
hallmarks of mediation such as empowerment through letting the parties craft their
own solution. In contrast, there are recognised different mediation models for the
process in the Australian practice. For exmple, the facilitative mediation model is the
most supported model practised in Australia. The facilitative mediation model is
preferable as it is most closely aligned with the philosophical hallmarks of mediation,
and addresses disputes 'through creative, mutual problem solving, not just a process
of settling cases in the shadow of the expected court outcomes.'178 It also empowers
the disputants to manage their own disputes, thereby fulfilling the ideal of ensuring
society becomes more harmonious in the longer term. Chapter 4 and 5 consider this
issue in detail.

Several factors have also played a significant role in the development of

mediation in Australia. NADRAC was a critical body that contributed to and
promoted the development of mediation practice.179 NADRAC promoted mediation
as a flexible and more efficient solution to dispute resolution.180 While the Abbott
government abolished this body in 2013, its legacy remains and is now enshrined in
legislation and practice standards. In 2014, The Australian Dispute Resolution
Advisory Council (ADRAC) stepped up to fill the space created by NADRAC. This
council is voluntary and independent, and aims to explore, research and promote

176
Jordanian Mediation Act 2006, art 3.
177
Masa'deh (n 19) 12.
178
Robert Baruch Bush, 'Staying in Orbit, or Breaking Free: The Relationship of Mediation to
The Courts Over Four Decades' (2008) 84 North Dakota Law Review 705, 721.
179
Varghese and Taylor (n 32) 3.
180
Rooney (n 171) 3.

30
 better dispute resolution processes in Australian.181 No similar such bodies are in
operation in Jordan.

This is a key reason to explore the two countries’ experiences in introducing

mediation as a method for addressing disputes.

1.4 Research Problem

The research problem aims to consider Australia’s advanced experience and

how it can contribute to understanding and improving Jordan’s mediation practice.
The research problems are aimed at exploring knowledge from Australia’s
experience to assist the system of mediation in Jordan. The specific research
problems engaged with are:

1. What are the current challenges that face mediation in Jordon?

2. Are there practices and learning from the more advanced Australian system that
could be adopted to enhance mediation practice within the Jordanian courts?
3. What recommendations can be made for the legal system and mediators in
Jordan to respond to these challenges?

1.5 Overview of Methodology

In order to operationalise the research problem this thesis employs two main
methodologies: firstly, a comparative study accessing primary (legislation and
cases); and secondary (reports and academic literature) materials. The Australian and
Jordanian legal systems are compared to provide a contextualised historical
perspective for understanding the two different legal systems. Comparative analysis
extends to looking at cultural differences that are relevant to the mediation process.
Additionally a qualitative interview study of key figures in the field from both
countries was undertaken. The qualitative investigation involved conducting 11
semi-structured interviews with mediator judges, mediators, lawyers and academics

181
The Australian Dispute resolution Advisory Council (ADRAC), About us (March 2020)
<https://www.adrac.org.au/>.

31
from each country to understand this process from the participants’ current
perspectives. This qualitative approach to data collection enabled currency of the
relevant literature to be considered. The qualitative data built an ‘at the moment’
picture of the reality of this process as experienced by practitioners at the height of
their field and expanded the information provided by the primary and secondary
literature used in the comparative method. Chapter 2 expands on the research
methods adopted.

1.6 Structure of the Thesis

This dissertation is divided into eight chapters.

Chapter I provides an introduction, background of the study and structural road

map of the thesis. It provides a literature review of the philosophical hallmarks of
mediation and an explanation of models of mediation. It establishes the reason for
the research.

Chapter II describes the methodologies used to undertake the research and the
reasons for their use. As described, the thesis adopts a comparative approach. First
by investigating the literature and reports from each country, establishing a basis for
understanding the comparision of the two legal systems. Second qualitative methods
are used to probe interviewees’ opinions about the development of mediation and the
issues that this process faces.

Chapter III is a review of the two legal systems, comparing the similarities and
differences of both in a contextually comparative manner. It introduces an
understanding of the cultural differencesin Australia and Jordan. This chapter
provides the context for the exploration of mediation undertaken in the study.

Chapter IV further explores the Jordanian culture to provide a comparison of

cultural considerations. For example, the role of Indigenous dispute approaches in
both countries provides a grounded contextual understanding, along with specialised
considerations such as the role of the Islamic religion in Jordanian disputes. This
chapter introduces the system of mediation applied within the legal system in Jordan

32
 and its development to date. It analyses theoretical debate on the implementation of
mediation in Jordan at the practical level.

Chapter V describes the dominant model of mediation developed in Australia

together with other models used. It examines the cultural context and the reasons for
Australian interest in using mediation and the challenges this has brought to the legal
profession and the adversarial litigation system.

Chapter VI presents the data from the significant mediation figures interviewed
and discusses key themes presented.

Chapter VII revisits the hallmark philosphoes after the consideration of the data
prtesented in Chapter VI and provides an analysis of these in view of the data and the
literature.

Chapter VIII addresses the research problem and provides recommendations for
Jordanian policy considerations, based on the results of the research. The
recommendations address issues still facing mediation practice in Jordan and the
betterment of mediation practice taking account of lessons from the Australian
experience.

1.7 Summary
This chapter has set out the foundations of this thesis. It has considered the
literature on the hallmark philosophies and models used in mediation practice. This
will assist with the research and discussion to identify best practices in addressing
the integration of mediation into the Australian and Jordanian legal systems. The
success in uptake of this process in Australia provides a reason for doing research
into identifying the factors that would be critical for effective mediation practice in
Jordan. It will help to provide a series of recommendations that may encourage
Jordanian legislators to make adjustments to the laws related to mediation, at the
same time providing further insight into the practice of mediation in Australia. This
chapter has provided the background and the context for the research and has
explained its significance. It has presented an overview of the research methodology
and provided a road map for the thesis to help direct the reader through to the
conclusion. The next chapter turns to the methodology used for this thesis.

33
 Chapter 2: Research Theory and Methodology

2.0 Introduction

This research reviews the practice of mediation, which has been in force for at
least thirty years in Australia and thirteen years in Jordan. These two countries were
selected as study sites for comparative research because Australia has a wealth of
experience in this field. This may provide significant benefits to scholars and
legislators in Jordan so they can identify and improve on any weaknesses in
mediation practice and learn from Australia’s experience. The study will also learn
from any issues still facing mediators in Australian practice. For the purpose of the
thesis, the mediation systems in Queensland and Amman provide the central focus.
The Queensland system is a representative sample of mediation practice in Australia
overall. Some variations are present between states, and this will be considered where
it is essential to comparisons being made. To address any deficit in this, not all
Australian interviewees are from Queensland. Jordan has applied the law of
mediation in the Amman courts in the first instance, and this is also where it is most
developed, so the focus is on this area.

Through exploration and comparison of the development and growth of the

mediation processes in Australia and Jordan, this thesis aims to consider the main
factors operating in relation to mediation practice in both countries, with a view to
making recommendations for improvements in Jordan. This is done through an
exploration of the differences and similarities of the legal systems through literature
analysis and their respective contexts, and their cultural positions, using a
comparative methodology. In addition, interviews with key stakeholders were
undertaken to gauge their perceptions about mediation practices in both countries.
The key stakeholders were a cross-section of mediators, lawyers, judges, and
academics.

This chapter deals with the operationalisation of the research and provides an
overview of the research methodology used in this study. As described in Chapter 1,
this thesis is a comparative study between Australia and Jordan’s mediation practice.

34
 The thesis uses literature analysis, comparative theory and interviews in this
undertaking. The literature covers primary materials such as legislation and case law,
as well as secondary reports and texts, to provide a situation analysis. When doing a
comparative study, the legal framework and cultural variations are essential to
understand to provide a fully contextualised understanding of the similarities and
differences at play within the compared systems. This approach enables informed
understandings that provide an opportunity to make suggestions in answer to the
focal questions being addressed by the thesis.

2.1 Theory

As the primary aim of this research is to find differences, similarities, problems,

and possible solutions, a comparative study is an appropriate method to adopt. A
comparative study is considered as an instrument that provides valuable insight into
and knowledge about a topic relevant to the two legal systems. According to Eberle1,
‘… the essence of comparison is then aligning similarities and differences between
data points, and then using this exercise as a measure to obtain an understanding of
the content and range of the data points.’2 Bell3 suggests that comparative law is ‘a
sub-branch of legal research’4 that aims to identify the principles and features of the
existing legislation of the countries studied.5 In this, the primary role of the researcher
‘is comparing his or her reconstruction of a foreign legal system with his or her
reconstruction of his or her own national system'.6 Frankenberg7 expands this by
suggesting that comparative law can be seen as ‘intellectual travelling’ to the
different country to have an opportunity to learn about their legal system and their
culture to suggest reform of the traveller’s own legal system.8 The latter represents
the actual position of the researcher in this thesis, with an intellectual and researcher

1
Edward Eberle, 'The Methodology of Comparative Law' (2011) 16 Roger Williams University
Law Review 51.
2
Ibid.
3
John Bell, 'Legal Research and the Distinctiveness of Comparative Law' in Mark Van Hoecke
(ed), Methodologies of Legal Research : Which Kind of Method for What Kind of Discipline?
(Hart Publishing Ltd, 2011), 158.
4
Ibid.
5
Ibid.
6
Ibid.
7
Gunter Frankenberg, 'Critical Comparisons: Re-Thinking Comparative Law' (1985) 26
Harvard International Law Journal 411.
8
Ibid.

35
 not only travelling but indeed physically embedding herself in another country
(Australia) to undertake the comparison with her home country Jordon.

As a Jordanian woman lawyer, I bring a certain perspective to my research, which

is an influence I acknowledge. My belief is that the mediation process in Jordan is not
activated to operate to its full potential. I worked as a lawyer in Amman for two years,
and I found that lawyers have a lack of knowledge about mediation and its benefits. I
found that the judges have started to ignore notifying the parties about the importance
of using this process as the majority of disputants tend to not choose the mediation
process. This observation is supported by Alsaleeby’s study.9 I worked as a lawyer for
six months in Karak, which is a state in the south of Jordan with a strong Bedouin
population. While working there, I found that the potential for a court mandated
mediation was not well known by clients, lawyers and even Judges as there have been
no awareness campaigns conducted within the legal and broader communities.10 This
is concerning given Bedouin traditional familiarity with the concept of privately
resolving disputes.

As a researcher, I wanted, through this thesis, to evaluate the operation of the

mediation law in Jordan to determine the main issues encountered in relation to its
adoption. Furthermore, there is very little current literature on this topic in Jordan.
Comparing it to the Australian experience helped me to identify the success factors,
along with the challenges, that this process has faced in Australia, a country more
advanced in its adoption of mediation. Using a qualitative methodology has helped
me to explore and understand this phenomenon. I was interested in talking to the
people who are involved in the process to know how to advance its operation. Thus,
my outlook has influenced my choice of questions in the interviews and how I have
interpreted the data to seek specific answers is related to the issues that may hinder
mediation’s progress.

9
Basheer Alsaleeby, Alternative Disputes Resolution (Dar Wael Publishing and Distribution
1ed, 2010).
10
See especially, Progress Report on the Progress of Court-Related Mediation Program in
Jordan between June 2007 - May 2008 Amman (American Judges and Lawyers Association-
Rule of Law Initiative, ('The Progress of Court-Related Mediation Program Report').

36
 The literature on comparative methodology agrees that there are six different
approaches to comparative legal research. These are referred to as the functional, the
structural, the analytical, the law in context, the historical, and the common-core
method.11 After an investigation of each for this comparative study, the law in context
method was adopted as the best fit for achieving the objectives of the research. The
law-in-context method means contextualising the law by understanding the
historical, political and legal systems in which the law operates.12 Such a rich
approach situates the main goals of the law through an understanding of the cultural
dimensions. This approach is adopted as it has several advantages in providing a
holistic understanding, rather than just the similarities and differences between two
legal systems’ legislation and case law, which approaches such as the functional,
structural and common-core adopt.

When doing comparative research, caution is to be observed for as Samuel notes,

comparative studies tend to cover similarities more than differences. 13 To avoid this
dilemma, Hoecke’s suggestion was adopted as it encourages comparatists to focus
on common legal problems and solutions more than on differences and similarities.14
This approach is appropriate in this thesis as it addresses dispute management, a
common legal problem, and the specific solution of mediation as a solution process
to address disputes. This thesis provides the reader with an understanding of how the
solution of mediation operates in both countries, to lead to a comprehension of the
challenges that mediators and legislators face, and to propose possible solutions to
any issues, whilst taking account of cultural differences that can affect this process.

11
See, e.g., Ralf Michaels, 'The Functional Method of Comparative Law' in Mathias Reimann
and Reinhard Zimmermann (eds), Oxford Handbook of Comperative Law (2006); Jaakko Husa,
'Comparative Law, Legal Linguistics and Methodology of Legal Doctrine' in Mark Van
Hoecke (ed), Methodologies of Legal Research: Which Kind of Method for What Kind of
Discipline? (Hart Publishing, 2011).
12
Maurice Adams and John Griffiths, 'Against "Comparative Method": Explaining Similarities
and Differences' in Maurice Adams and Jacco Bomhoff (eds), Practice and Theory in
Comparative Law (Cambridge University Press, 2012), 293.
13
Geoffrey Samuel, 'Does One Need an Understanding of Methodology in Law before One Can
Understand Methodology in Comparative Law?' in Mark Van Hoecke (ed), Methodologies of
Legal Research: Which Kind of Method for What Kind of Discipline? (Hart Publishing Ltd,
2011), 180.
14
Mark Van Hoecke, 'Methodology of Comparative Legal Research' (2015) ResearchGate 7;
Geoffery Samuel, An Introduction to Comparative Law Theory and Method (Hart Publishing,
2014) 81.

37
 A further perceived difficulty for this contextual comparative study is that the
legal systems compared differ. Australia is a common law jurisdiction, and Jordan is
a civil law jurisdiction, which provides an immediate difference in legal systems.
However, as Wailes et al.15 suggest, research that applies to comparing two different
cases that share the same phenomenon is vital, and certainly there is more room for
comparison between their respective civil and common law systems when addressing
the same phenomenon, namely the use of mediation to manage disputing.16
Alexander17 indicates, there are a minimal number of comparative studies in
mediation involving civil law countries, no doubt because the mediation
phenomenon is still in its infancy in these jurisdictions. However, both countries in
this study have supported the use of mediation because it may be a cheaper, quicker
and a more confidential alternative to traditional court litigation. The process of
mediation is a universal one and creating a comparative study in mediation between
common and civil law jurisdictions therefore provides a useful opportunity for
reflection on the differences and similarities in the development of mediation in the
different legal systems. It is valuable, in terms of understanding the approach of a
common-law jurisdiction such as Australia, to compare and analyse it with the
practice of mediation in a civil law country such as Jordan, after the concept has been
introduced. Learnings from each country can provide insights that can advance the
process in a way that avoids duplication of unnecessary roadblocks or a ‘reinventing
of the wheel.’

The comparison undertaken would not be complete without acknowledging

cultural factors. On this basis, the researcher has adopted a dimensional values
approach along with an etic-essentialist view for this comparative study as it is not
addressing intercultural conflict,18 but looks at cross-cultural communication/
conflict in that it is making direct comparisons. The approach draws on the high-
context/low–context cultural framework, which is well known in mediation

15
Nick Wailes et al, International and Comparative Employment Relations : National
Regulation, Global Changes (Allen and Unwin, 6th ed, 2016) 7.
16
Ibid.
17
Nadja Alexander, 'What's Law Got to Do with It-Mapping Modern Mediation Movements in
Civil and Common Law Jurisdictions' (2001) 13(2) Bond Law Review 2, 8.
18
Dominic Busch, 'Does Conflict Mediation Research Keep Track with Cultural Theory? A
Theory-Based Qualitative Content Analysis on Concepts of Culture in Conflict Management
Research' (2016) 4(2) European Journal of Applied Linguistics 181-206.

38
 research.19 In addressing the big picture, the essentialist approach is appropriate
given the study looks at a contextualised comparison of a geographical or country
region, its history, peoples and institutions. The etic approach is taken as the
researcher has engaged in comparison of Jordanian dispute management with
Australia’s system of dispute management – in particular mediation.

For Jordan, a more unified culture than the diverse multicultural society of
Australia, this is perhaps simpler for making more overarching statements. This
factor is a central consideration and has resulted in the researcher taking a
dimensional values approach20 considering individualism-collectivism, power-
distance incorporating an etic essentialist approach21 when discussing cultural
considerations, in particular in Chapter 3. There are many research methods to adopt
when considering culture but as this is a cross cultural comparative study the
researcher is addressing the two countries through their institutions, history and legal
structures, thus an essentialist consideration is appropriate when comparing
Jordanian mediation practices with a Western country such as Australia. The thesis
will explain the background to the development of mediation in both Australia’s and
Jordan’s legal systems. It will analyse mediation legislation in Jordan and Australia,
such as the Civil Dispute Resolution Act 2011(Cth) and Mediation Law for Settlement
of Civil Disputes Act 2006 (Jor). In addition, it will investigate the models of
mediation used and the mediator styles. The difficulties and successes faced in both
jurisdictions are uncovered.

One of the difficulties in the research is that there has been very little research on
the mediation process in Jordan. However, there has been extensive research in
Australia into this process as it has been in operation for longer. Within Jordanian
literature, Qatawneh22 has provided an evaluative study that criticises the Jordanian
law of mediation and outlines what he considers to be a more perfect law, which was

19
Michelle LeBaron, 'Culture and Conflict: Beyond Intractability' in Guy Burgess and Heidi
Burgess (eds), Conflict Information Consortium (University of Colorado, 2003); Robert A
LeVine, 'Anthropology and the Study of Conflict: An Introduction' (1961) 5(1) The Journal of
Conflict Resolution 3-15.
20
Busch (n 18) 181-207.
21
Stella Ting-Toomey, 'Applying Dimensional Values in Understanding Intercultural
Communication' (2010) 77(2) Communication Monographs 169-180.
22
Mohammad Ahmad Al-Qatawneh, 'Mediation in Settlement the Civil Disputes ' (LLM Thesis,
Mutah University, 2008) 4.

39
initially hoped to have been adopted by the legislature.23 For example, Qatawneh
indicates that there is no continuous training program for mediators to improve and
develop their skills and no accreditation certificates for those wishing to operate in this
profession. Alsaleeby24 conducted a descriptive study about the mediation process in
Jordan between 2007 and 2009. Alsaleeby found that there is a need to educate the
lawyers and the parties about the importance of using this process.25 Saleeby26 also
illustrated how the modern practice of mediation in Jordan was affected by Western
practices of mediation, especially the American one.27 Rashdan28 has examined the
mediation process and noted that the process has faced several barriers, resulting in
low demand for it in Jordon. Concerns Rashdan highlight include the Jordanian
legislation’s broad-brush approach that makes the process hard to follow at first
glance.29There is also an absence of the mediators' codes of conduct and mediator
accreditation mechanisms.30 Sarhan31 has provided an examination of the process of
mediation practised by judge mediators under the new laws, and has suggested that
clarification and amendments are required. 32 These studies provide a starting point in
examining the mediation process in Jordan. However, these studies have not taken a
comparative approach that can provide greater insight into what works well and what
can be improved, through an outsider lens that acknowledges a cultural
contextualisation.For Australia, there has been an extensive examination of mediation
with many changes and adaptations over a longer period.33 The Australian literature

23
Ibid.
24
Alsaleeby (n 9) 22.
25
Ibid.
26
Ibid.
27
Ibid.
28
Ali Mahmoud Al-Rashdan, Mediation in Settlement the Disputes (Dar Al-Yazoury Scientific
for Publishing, 2016) 145.
29
Ibid.
30
Ibid.
31
Bakr Abd-Fatah Al-Sarhan, 'Mediation on the Hands of the Mediator Judge: The Concept,
Importance and Procedures' (2009)(1) Jordanian Journal in Law and Political Science 98.
32
Ibid.
33
See e.g., Tania Sourdin, 'Facilitative Judging' (2004) 22(1) Law in Context 64-92; Tania
Sourdin, 'Civil Dispute Resolution Obligations: What is Reasonable?' (2012) 35(3) University
of New South Wales Law Journal 889-913; Susan Douglas, 'Neutrality, Self-Determination,
Fairness and Differing Models of Mediation' (2012) 19 James Cook University Law Review 19-
40; Tania Sourdin, 'Exploring Civil Pre-Action Requirements: Resolving Disputes Outside
Courts' (2013) Australian Institute of Judicial Administration; Tania Sourdin, 'Resolving
Disputes without Courts' (2013) 32(1) The Arbitrator and Mediator 25; Tania Sourdin and
Naomi Burstyner, 'Cost and Time Hurdles in Civil Litigation: Exploring the Impact of Pre-
Action Requirements' (2013) Journal of Civil Litigation and Practice; David Spencer and
Samantha Hardy, Dispute Resolution in Australia: Cases, Commentary and Materials
(Thomson Reuters, 2014); Klaus Hopt and Felix Steffek (eds), Mediation : Principles and

40
provides a wealth of information about the development of dispute resolution in
general, and mediation more specifically. Qualitative, evidence-based research is
available, including observation of mediation sessions and interviews with participants
to measure their satisfaction.34 Many studies in Australia concentrate on evaluating the
process of mediation by using empirical qualitative research to determine the
efficiency of this process.35 For example, Sourdin and Balvin36 explore in their study
the various mediation processes used in court related mediations in the Supreme and
County Courts of Victoria, Australia.37 Their research aimed to enhance the quality of
mediation and dispute resolution practice through examining the role of legal
representatives and studying mediator and litigant perceptions in the process.38 Noone
and Ojelabi39 also address the use of mediation as a vital way to improve the access to
justice for disputants.40 Their research concludes that the quality of mediation could
be measured to ensure access to justice is enhanced for the disadvantaged. 41 Lastly, as
mandatory mediation has become Australia’s default dispute resolution mechanism,
42
Waye also delineates how this adoption has led to widespread improvements in
access to justice in Australia.43 Thus, the Australian literature has rich information
about the bright side of mediation that can be a benefit to enhance the Jordanian

Regulation in Comparative Perspective (Oxford University Press, 2013).; Marjorie Mantle,

Mediation: A Practical Guide for Lawyers (Edinburgh University Press, 2017); Laurence
Boulle and Rachael Field, Australian Dispute Resolution : Law and Practice (LexisNexis
Butterworths, 2017); Susan Douglas, 'Ethics in Mediation: Centralising Relationships of Trust'
(2017) 35(1) Law in Context 44-63.
34
Melissa Conley Tyler and Jackie Bornstein, 'Court Referral to ADR: Lessons from an
Intervention Order Mediation Pilot' (2006) 16(1) Journal of Judicial Administration 48; Tania
Sourdin, 'Mediation in the Supreme and County Courts of Victoria' (2009) Report prepared for
the Department of Justice, Victoria, Australia.
35
Laurence Street, 'Mediation and the Judicial Institution' (1997) 71(10) Australian Law Journal
794-796; John Wade, 'Don't Waste My Time on Negotiation and Mediation: This Dispute
Needs a Judge' (2001) 18(3) Mediation Quarterly 259-280; Nadja Alexander, 'Mediation on
Trial: Ten Verdicts on Court-Related ADR' (2004) 22 Law Context: A Socio-Legal Journal 8;
Tania Sourdin and Nikola Balvin, 'Mediation Styles and their Impact: Lessons From the
Supreme and County Courts of Victoria Research Project' (2009) 20 Australasian Dispute
Resolution Journal 142; Tania Sourdin, 'Making an Attempt to Resolve Disputes Before Using
Courts: We All Have Obligations' (2010) 21 Australasian Dispute Resolution Journal 225;
Mary Anne Noone and Lola Akin Ojelabi, 'Ensuring Access to Justice in Mediation Within the
Civil Justice System' (2014) 40 Monash University Law Review 528.
36
Sourdin and Balvin (n 35) 142.
37
Ibid.
38
Ibid.
39
Noone and Ojelabi (n 35) 528.
40
Ibid.
41
Ibid.
42
Vicki Waye, 'Mandatory Mediation in Australia’s Civil Justice System' (2016) 45(2-3)
Common Law World Review 214-235, 214.
43
Ibid.

41
experience in advancing the mediation process to flourish.A difficulty in
contextualized comparative studies is that the literature has a lag time from conducting
the research to the reporting of the findings. While this thesis analyses the literature, it
has made sure it is contemporary and cutting edge by the addition of data from
interviews conducted with mediators, judges, lawyers, and academics from both
countries. As there has been some debate regarding the relative merits of these
techniques of data collection, it is pertinent here to review the methodologies
associated with those techniques before discussing the research techniques used in this
study. This section commences with an overview of the qualitative methods used.

2.2 Qualitative Research

Qualitative research is defined as a type of research that produces descriptive

data about people’s experience and observable behaviour within a specific setting.44
The research methodology for the interviews has adopted this qualitative approach
using semi-structured interviews. The method seeks to understand the participants’
perceptions and experiences within their lives and in specific settings.45 In using this
method, the participants could express their views about the topic of research, which
relied on their perceptions of the realities that surrounded them. This then enabled
the research to apply a thematic analysis that captured the perspectives as a basis to
know ‘[w]hat is happening here, specifically? What do these happenings mean to the
people engaged in them?’46 So, the aim of the qualitative method was to discover and
explore explanations that contributed to a deeper understanding of the topic of study.

The literature is considered in order to inform the research problem, and this has
provided a basis to conduct an analysis of the mediation process, which informs the
perspectives of the interviewees who practice this process. This aimed to provide a
current perspective on key concerns around enhancing mediation performance in
both countries. This thesis has not refocused interviewees' perceptions from the point
of view of an existing theory or framework. Instead, this study provides an analysis

44
John Amos Hatch, Doing Qualitative Research in Education Settings (State University of New
York Press, 2002) 6.
45
Jack Fraenkel, Norman Wallen and Helen Hyun, How to Design and Evaluate Research in
Education (New York: McGraw-Hill Humanities/Social Sciences/Languages, 2011) 505.
46
Frederick Erickson, 'Qualitative Methods in Research on Teaching' in Merlin Wittrock (ed),
Handbook of Research on Teaching: A Project of the American Educational Research
Association (Macmillan; Collier-Macmillan, 3rd ed, 1986), 148.

42
 of key factors perceived by interviewees with a view to formulating some
recommendations for improving mediation practice in both countries.47

Comparative law has not only been employed as a discipline to understand

foreign law, but also considered the culture through a law in context approach.48 To
do this, the underlying influences and structure of the use of mediation in both
countries has been addressed in order to understand how the respective laws have
been developed and how they currently influence the use of mediation within the
respective societies. Therefore, the exploration has included an overview of the
Indigenous cultures and their influence on dispute management practices in both
countries. It also addresses key difference in cultural communication practices. This
contextualised approach to cultural differences and similarities provides an
understanding of the cultural influences and their level of impact on the law and its
actual operation within these countries.49 This thick level understanding of the
mediation process, as now provided for in the law, along with cultural influences, has
enabled this thesis to suggest reforms of mediation practices by taking into account
the opinions of the interviewed key figures who use the mediation process in both
countries.

After a contextual comparative and literature analysis, this study has

concentrated on aspects of the mediation legislation and practices, as currently
implemented in Jordan and Australia. It will focus on three levels: the nature of the
models of mediation adopted; the role of the judge in mediation, particularly in
Jordan; and the role of the mediator and lawyer advisors in both countries. It has
considered these three aspects through factors such as the legislative mechanisms
used by the government to encourage the use of mediation, mediation models used,
and the evidence of the issues raised by the literature and the interviewees.

47
Kathleen M Eisenhardt, 'Building Theories from Case Study Research' (1989) 14(4) Academy
of Management Review 532-550.
48
Frankenberg (n 7) 412.
49
Eberle (n 1) 53.

43
 2.3 Data Collection – Interview Methodology

Primary materials such as legislation and case law, and secondary materials such
as reports, journals and written materials, were accessed. These were sourced from
the library databases to identify studies relevant to the phenomenon of mediation.
The University of Southern Queensland (USQ) provides access to a broad range of
academic databases that are linked to the topic, for example, LexisNexis and
Westlaw. The researcher has reviewed studies published within the period from 1986
to 2019. This period was chosen to understand the more contemporary development
of mediation and the dilemmas that this process has faced since its uptake in Australia
and Jordan, and also to provide the research with a workable parameter.

As mentioned earlier, this thesis has conducted eleven semi-structured

interviews. Qualitative interviews create a special kind of conversation between the
researcher and the interviewees, and a semi-structured interview enables open-ended
and expansive responses. These questions encourage interviewees to explain their
unique perspectives on the specific issues, which help to reveal information to
understand their world.50 Conducting interviews in this thesis has enabled
identification of the specific challenges and issues that mediation implementation
and practice are facing in both countries. The interviews gathered in-depth
information about the interviewees’ thoughts, knowledge and experience, by asking
the same semi-structured questions of each participant (see, appendix 1).51 They
provided a range of perspectives from the actors involved in mediation practice, and
they were directly comparable as the different discipline and professional areas were
closely represented from each of the two countries.

Five interviewees came from Australia and six from Jordan. All interviews were
conducted using Skype from within Queensland, Australia. The Australian
interviews were undertaken from 4 February to 8 April 2019. All interviewees
resided in Queensland although a number have practised in other states. The
Jordanian interviews were conducted from 4 March to 8 December 2018.

50
Irving Seidman, Interviewing as Qualitative Research: A Guide for Researchers in Education
and the Social Sciences (Teachers College Press, 2006) 9.
51
Gerald Hess, 'Qualitative Research on Legal Education: Studying Outstanding Law Teachers'
(2014) 51 Alberta Law Review 925-925, 932.

44
 Interviewees resided in both the US and Jordan. Those interviewed included one
person who had participated in introducing the mediation process in Jordan through
encouraging the Jordanian legislature to adopt this process. The other five
interviewees were Jordanian practitioners in the civil jurisdiction, who utilise the
mediation process, and academics.

Table 1: List of professions interviewed 52

Australia Jordan

Academics 2 2

Lawyers 3* 3

Mediators and lawyers 3 2

Judge mediators 0 1

• Note Three lawyers also work as mediators. In total there were 11 interviews

Debate exists around the appropriate number of interviews that should be

conducted. Some researchers argue eleven interviews are not enough for gathering
information.53 Patton,54 however, confirms that there is no specific number of
interviews that should be used.55 Yin56 suggests that a sample of eight to ten
interviews is sufficient for qualitative research.57 The researcher chose eleven
interviewees, five from Australia and six from Jordan. Echoing Yin, Sandelowski58
states that a ‘… sample size of 10 may be judged adequate for certain kinds of
homogeneous or critical case sampling…’59 In this thesis, the interviewees represent
sophisticated and high-level practitioners in the specific domain of mediation. It is,

52
There are three Australian lawyers who work as mediators and two Jordanian lawyers who
work as mediator.
53
Lisa Ellram, 'The Use of the Case Study Method in Logistics Research' (1996) 17(2) Journal of
Business Logistics 93; Larry Hedges and Ingram Olkin, Statistical Methods for Meta-Analysis
(Academic Press, 2014) 350.
54
Michael Quinn Patton, 'Two Decades of Developments in Qualitative Inquiry: a Personal,
Experiential Perspective' (2002) 1(3) Qualitative Social Work 261-283; Michael Quinn Patton,
Utilization-Focused Evaluation (Sage publications, 2008).
55
Patton, 'Two Decades of Developments in Qualitative Inquiry: a Personal, Experiential
Perspective' (n 54) 261; Patton, Utilization-Focused Evaluation (n 54) 262.
56
Robert Yin, Case Study Research: Design and Methods (SAGE Publications, 4th ed, 2009) 55.
57
Ibid.
58
Margarete Sandelowski, 'Sample Size in Qualitative Research' (1995) 18(2) Research in
Nursing and Health 179-183.
59
Ibid.

45
 therefore, an effective approach to ensure currency of the information rather than
relying solely on published materials, which can lose some of its currency from the
time between being written and being published. It is clear from the variation in
scholars' opinions that there is no clear rule that can be applied when it comes to the
number of interviews. Nevertheless, considering the aim of this thesis, it is
considered that the selection of ten interviewees was more than adequate, as the
researcher is entitled to stop gathering information via interviews at the point where
no new data is being presented.60 The interview data collected in this thesis
demonstrated that a point of data saturation was reached in the eleven interviews
conducted when the same views were being repeated in response to the questions.

Recruitment was conducted via email contact, based on publicly available

listings of people working in the relevant field in both countries. These listings
included law school academics, Law Society member listings, and Court websites,
because they provided contacts for elite specialists working in this particular domain.
Interviewees were selected from the relevant domains such as judges, mediators,
lawyers, tribunal mediators and academic researchers in the area of mediation
practice. Selection was based on their level of participation in their respective
domains of mediation. They were identified as important figures with a depth of
knowledge on mediation. One-hour interviews were conducted with eleven
participants. The interviews were conducted via phone or asynchronous virtual
technology, such as Zoom or Skype, for flexibility, cost and time saving.

Ethical approval was obtained from the University of Southern Queensland

(USQ) in 2018 to ensure that this study met the required ethical standards. University
of Southern Queensland Project Code H18REA012 was provided. Several steps were
taken to ensure the protection of the participants’ welfare. To overcome time
inconvenience to the participants, the interviews were arranged at a pre-agreed time
suitable to the interviewee and breaks in the interview were offered, if required by
the participant. Furthermore, the participants were informed in the participants'
information sheet (See Appendix 3) that there was no obligation to participate, nor
any consequences if they did not want to. Three participants did withdraw prior to

60
Evert Gummesson, Qualitative Methods in Management Research (Sage Publications, 2000)
113.

46
 the scheduled interview due to work demands. All interview data were anonymised
to protect interviewee identity.

The interviews were audio-recorded and transcribed. Transcription was done by

a professional transcriber and was subject to a confidentiality agreement. Interviews
were held at a convenient time nominated by the interviewee. The interview
questions were designed to elicit challenges, successes and solutions, based on
experience faced by the practitioners. The semi-structured interviews provided the
interviewer with more freedom ‘to modify the style, pace and ordering of questions
to evoke the fullest responses from interviewees.’61 The interviews started with
opening questions followed by more probing question to get detailed information
related to the mediation practice. The interviews provided a range of perspectives
from the interviewees involved in mediation practice, and they were directly
comparable between the different discipline and professional areas represented and
between the two countries.

2.4 Qualitative Data Analysis

The qualitative data from the interviews were compared, whilst looking for the
main themes raised. The researcher used NVivo software to assist in this process.
NVivo is a tool that assists in managing the data and ideas from interviews, asking
simple or complex questions of the data to find answers, and to visualise the data in
order to represent relationships within the information as well as draw conclusions
on common themes.62

The researcher also conducted a manual analysis of the interviews to ensure all
data were covered and themes were addressed. This process involved manually
comparing keywords, as well as the responses to each of the semi structured
questions, for example mediation definitions, development, cultural effect, and issues
that may face the progress of mediation. After finishing this analysis, the themes,

61
Sandy Qu and John Dumay, 'The Qualitative Research Interview' (2011) 8(3) Qualitative
Research in Accounting and Management, 246.
62
Marilyn Healy and Chad Perry, 'Comprehensive Criteria to Judge Validity and Reliability of
Qualitative Research within the Realism Paradigm' (2000) 3(3) Qualitative Market Research:
An International Journal 118-126; Johnny Saldaña, The Coding Manual for Qualitative
Researchers (Sage, 2015).

47
 sub-themes and examples of direct quotes were carried over into tables for the
presentation of the data in this thesis.

2.5 Summary

This chapter has provided details about the theory and methodological approach
undertaken to conduct the research. Justifications for adopting a contextual
comparative approach have been addressed along with any difficulties and
limitations in this approach. It has provided the details of the research design and the
theoretical underpinnings in choosing this design. The chapter has also provided an
explanation of how the data were collected and analysed. The next chapter starts with
a comparison of the legal systems in Jordan and Australia respectively. This follows
a contextualized comparative approach and is to aid the understanding of the legal
framework within which the use of mediation as a dispute management mechanism
is situated.

48
 Chapter 3: A Contextual Review of the Legal Systems

3.0 Introduction

In a comparative study, it is necessary to provide context by understanding the

legal systems in the countries compared, in order to locate the space in which
mediation operates in the overall legal structure. This chapter, therefore, provides an
overview of the legal systems of Australia and Jordan. It does this in a historical
manner and provides a contextualised basis for understanding just where mediation
sits within each legal system. It is helpful to understand how mediation found its
place in the Australian and Jordanian legal system. This aids in determining how both
countries have crafted their laws, where the current mediation practices have evolved
from, and system on which this relative new approach to dispute resolution has been
grafted. Next, similarities and differences between the historical developments of
both countries’ legal systems1 are outlined.

3.1 History

Many factors have shaped the nature of the Australian legal system. Since the
British government first transported convicts to Australia in 1786 as a punishment
for their crimes, debate has been had over the Indigenous people who already
inhabited the land.2 There were two options for Australia: either the British could
claim Australia through conquest over the Indigenous people, or they could claim the
land was terra nullius - vacant land, and thus open for settlement of the colony.3

1
See, e.g., Pier Giuseppe Monateri, Methods of comparative Law (Edward Elgar Publishing,
2012); Mark Van Hoecke, 'Deep Level Comparative Law' in Mark Van Hoecke (ed),
Epistemology and Methodology of Comparative Law (Oxford: Hart Publishing, 2004) 165-195;
Imre Zajtay, 'Aims and Methods of Comparative Law' (1974) 7(3) Comparative and
International Law Journal of Southern Africa 321-330; Mark Van Hoecke, 'Methodology of
Comparative Legal Research' (2015) ResearchGate 10.
2
Hamish Maxwell‐Stewart, 'Convict transportation from Britain and Ireland 1615–1870' (2010)
8(11) History Compass 1221-1242; Frank Lewis, 'The Cost of Convict Transportation from
Britain to Australia 1796-1810' (1988) 41(4) The Economic History Review 507.
3
James Crawford, 'The Aboriginal Legal Heritage : Aboriginal Public Law and the Treaty
Proposal ' (1989)(63) Australian Law Journal 15.

49
 Despite many historical battles and deaths that ensued, the British claimed the latter.4
In so doing, it was said that the convicts and settlers brought the common law of
England with them, which included all English laws that were suitable and applicable
to the colonial circumstances.5 At the time, the Australian colonies were established
for only one purpose, which was as a military outpost for the British Empire. These
convicts populated the colonies in Australia, (except South Australia) and this shaped
the nature of the legal system in Australia. They brought with them a culture of law
which has influenced Australia’s development as a common law country, and this
impacted profoundly on the people who already lived there.6 Britain displaced the
Indigenous legal systems and effectively imposed their foreign law in Australia.

The High Court of Australia in Mabo v Queensland (No 2) (1992) (Mabo),7

however, finally rejected the principle of terra nullius. This has been described as a
most critical case in Australian legal history because the High Court recognised a
form of native title that had previously been denied. This is now established by proof
of pre-existing and ongoing native rights and interests held by traditional owner
groups in different parts of Australia.8 As a result of (Mabo) the Commonwealth
Government introduced the Native Title Act 1993 (Cth) (NTA),9 which provides a
framework for Aboriginal peoples and Torres Strait Islanders to seek recognition of
their traditional country. They now must make an application to the Federal Court to
claim their rights and interests.10 Significantly, the Native Title Act, 1993 (Cth)11
determines land title via the process of mediation.12 When the claimants submit their

4
See e.g. Raymond Evans and Bill Thorpe, 'Indigenocide and the Massacre Of Aboriginal
History' (2001)(163) Overland Society Limited 21; Bruce Elder, Blood on the Wattle :
Massacres and Maltreatment of Aboriginal Australians since 1788 (New Holland, 3rd ed,
2003).
5
Prue Vines, Law and Justice in Australia: Foundations of the Legal System (Oxford University
Press, 3rd ed, 2013) 3.
6
David Neal, The Rule of Law in a Penal Colony: Law and Politics in Early New South Wales
(Cambridge University Press, 1991) 1-5.
7
Mabo v Queensland (1992) 2 CLR 175 ('Mabo v Queensland ').
8
The National Alternative Dispute Resolution Advisory Council (NADRAC), 'Indigenous
Dispute Resolution and Conflict Management ' (Report 2006), 9.
9
The Native Title Act 1993 (Cth) ('The Native Title Act ').
10
Kingsley Palmer, Australian Native Title Anthropology : Strategic Practice, the Law and the
State (Australian National University Press, 2018); Leah Cameron and Cassie Lang, 'The
importance of Mabo Day and the 'Native Title Act' 1993' (2018) 38(5) The Proctor 18-19; Tim
Rowse, 'How we Got a Native Title Act' (1993) 65(4) The Australian Quarterly 110-132.
11
As amended by the Native Title Amendment Act 1998.
12
Kevin Dolman, 'Native Title Mediation: Is It Fair? ' (1999) 4(21) Indigenous Law Bulletin 8-10.
Patricia Lane, 'Mediation Under the Native Title Act' (1998) 17 Australian Mining and
Petroleum Law Journal, 327.

50
 application to the Federal Court, this court must refer the application to the National
Native Title Tribunal. It aims to assist parties to reach agreement via mediation,
unless the Court makes an order that there is no need for mediation.13 The Indigenous
practice of dispute settlement is described in more detail in Chapter 5. However,
Indigenous influence in dispute settlement exists in Australia through restorative
justice projects such as circle sentencing, victim offender mediation and Murri
Courts.14

For the colonial settlers between 1855 and 1890, the British Parliament granted
a limited right to set up a local system of government in each of the British colonies
within Australia, usually referred to as granting ‘responsible government.’ As each
of the colonies (New South Wales (1787), Tasmania (1803), Queensland (1824), and
Western Australia (1850)) was granted this right, they were able to develop their own
laws and legal systems to deal with their particular situations. Thus, the law and legal
system in each colony began to develop separately from British law.

During the late 19th century, Australia had a series of Constitutional debates
moving towards creating a central government. The first Convention was attended
by Australian colonies and New Zealand in 1891, but it ended because New Zealand
decided to remain separate from the Australian colonies. In 1899 at the third
Convention, a referendum was held among the six colonies (New South Wales,
Queensland, South Australia, Tasmania, Victoria, and Western Australia). The Third
Convention was successful in moving toward a federal system of government with
the colonies gaining Statehood. Ultimately, the British Parliament passed the Act of
the Australian Federal Constitution, Queen Victoria gave the Royal Assent, and
Australia became a federal system with effect from 1 January 1901.15

The Australian Constitution sets down the powers of the states and territories
and the Commonwealth or Federal Parliament. This is provided for through

13
The Native Title Act (n 9) s 86/A and B; see further, Graeme Neate, Craig Jones and Geoff
Clark, 'Against All Odds: The Mediation of Native Title Agreements in Australia' (Conference
Paper, Second Asia Pacific Mediation Forum 2003); Lane (n 12) 322.
14
Chris Cunneen, 'Reviving Restorative Justice Traditions?' in D. Van Ness (ed), Handbook of
Restorative Justice (Willan Publishing, 2007) 135-153; Elena Marchetti and Kathleen Daly,
'Indigenous Sentencing Courts: Towards a Theoretical and Jurisprudential Model' (2007) 29
Sydney Law Review 415.
15
See: Peter Hanks, Constitutional Law in Australia (LexisNexis Butterworths, 3rd ed, 2012). 6-
13.

51
 enumerated powers for the Federal Parliament in s51 of the Constitution, which
specifies topics for the creation of legislation. An ability to deal with overlapping
powers, giving precedent to Commonwealth legislation, is provided by s109 of the
Constitution. A separation of powers is implied by the organisation of the
Constitution into chapters, one each dealing with the Legislature - Chapter 1,
Executive - Chapter 2 and Courts – Chapter 3.16

The Australian Constitution was the beginning of a more independent

Australian legal system from the British. It created a federal system with the six
colonies becoming states and two colonies becoming territories (Northern Territory
and the Australian Capital Territory). However, Australia is still not entirely
independent, as the Queen, through her representative the Governor-General, is head
of the Executive. Joske17 describes the Australian Federal system as ‘a partnership in
government with a central authority to look after matters of national and international
import, and localised governments to deal with the differing conditions of the local
communities.’18 In the Australian federal system, there are thus two primary sources
of constitutional law: the Commonwealth Constitution and the States’ individual
Constitutions.19 This means all Australians are subject to a layered legal system
comprised of the federal laws, and the laws of the state or territory in which they
reside.

In contrast, the genesis of Jordan’s legal system has even more mixed legal roots,
starting with Bedouin, then moving to Islam, the Ottoman Empire, the Hashemite
dynasty, and the British mandate and monarchy. Each have played an essential role
in modelling this country. Like Indigenous Australians, the Bedouin people in Jordan
have occupied their respective territories for many thousands of years.20 Jordan, as a
Middle Eastern country, was also administered by the Ottoman Empire for over 400

16
Nicholas Aroney et al, The Constitution of the Commonwealth of Australia: History, Principle
and Interpretation (Cambridge University Press, 2015) 1.
17
Vines (n 5) 214 quoting Percy Ernest Joske, Australian federal government ( Butterworths,
1976) 25.
18
Vines (n 5) 214, quoting Joske (n 17) 25.
19
See e.g.: The New South Wales Constitution Act 1902 (NSW) ('The NSW Constitution'); The
Northern Territory (Administration) Act 1910 (NT) ('The Northern Territory (Administration)
Act'); The Constitution of Queensland Act 2001 (Qld) ('The Constitution of Queensland Act').
20
Chris Clarkson et al, 'Human Occupation of Northern Australia by 65,000 Years Ago' (2017)
547(7663) Nature Journal 306; Ruth Kark and Seth J Frantzman, 'Empire, State and the
Bedouin of the Middle East, Past and Present: A Comparative Study of Land and Settlement
Policies' (2012) 48(4) Middle Eastern Studies 487-510, 488.

52
 years. After World War 1, the Ottoman influence was terminated, and the Hashemite
royal family established their system of rules.21 From 1922, the British, through
mandated representatives, started to administer Jordan.22 This mandate period ended
in the spring of 1946 when the United Nations recognised Jordan as an independent
state. Bedouin lifestyle was maintained throughout these periods, but less so after
Jordan’s independence in 1946. Successive governments of Jordon have minimised
Bedouin influence by encouraging the people to settle in the cities and by offering
employment in the military, industry, and the service and trade sectors.23

The current Constitution was enacted in 1952. Like Australia, it was influenced
by the British and follows the principle of the rule of law, which underpins the
democratic principles of society. This means all citizens are ruled by the prescribed
law and the Constitution is central, as ‘the nation is the source of all powers and the
Nation shall exercise its powers in the manner prescribed by the present
Constitution.’24 The formal name for Jordan is the Hashemite Kingdom of Jordan. It
is divided into 12 governorates (Irbid, Ajloun, Jerash, Mafraq, Balqa, Amman, Zarqa,
Madaba, Karak, Tafilah, Ma’an, and Aqaba), each one headed by a governor.
Governors are appointed by the King through the Minister, and they maintain law
and order at the local level. Jordan’s population of Sunni Muslims comprise 92 per
cent of the population, and Christians comprise 6 per cent.25 Unlike Australia, Jordon
is a unitary State, with one central government.

3.2 Civil Law and Common law Legal Systems

Most nations today follow one of two major legal traditions: common law or
civil law. The common law tradition emerged in England during the Middle Ages

21
Awad AlLaimon, The Evolution of the Jordanian Constitutional System, an Analytical Study
(Dar Wael 2015) 21.
22
Ali Shetnawi, Constitutional Law System (Dar Wael for Publishing and Distribution 1ed, 2013)
13.
23
Amira El Azhary Sonbol, Women of the Jordan: Islam, labor, and the law (Syracuse University
Press, 2003) 22.
24
The Constitution of The Hashemite Kingdom of Jordan 1952 (Jor) art 24 (' Jordanian
Constitution’).
25
Tariq Hammouri, Dima Khleifat and Qais Mahafzah, 'Chapter 4: Jordan' in Nadja Alexander
(ed), Arbitration and Mediation in the Southern Mediterranean Countries (Kluwer Law
International 2007), 69.

53
 and was applied to British colonies across continents.26 The civil law tradition is the
oldest and most widely distributed legal system, which developed in continental
Europe.27 The common law and civil law systems have influenced the development
of legal systems in countries around the world, with the civil law tradition coming to
dominate through its uptake in many countries. Still some countries, often known as
the Commonwealth countries, follow the English common law traditions, and their
roots are based in this system. These Commonwealth countries were conquered or
colonised by the British Empire. Australia is one such country. Over time, these
countries have come to adopt their own unique mix of characteristics often in a
plurality of legal traditions. Jordon follows a civil legal family tradition, which holds
a mix of plural legal systems. The essential difference between common law and civil
law countries is that the common law comes not only from Parliamentary-created
legislation, but also from Judge-made laws in the courts. In civil countries, the
separation of powers is more rigid, with only Parliament enabled to legislate the
written law; judges apply the law but do not make law. Civil codified written laws
play an essential part in civil law countries.

Thus, the Australian common law legal system is significantly influenced by

English heritage. In this tradition, judges have an essential role in shaping the law
through the development of judge-made law. Law is developed from the cases
decided by the judges, and through a process of stare decisis, precedent is created in
the case law. Precedent develops over time through the judge’s decision making,
which is recorded in law reports. The process of stare decisis operates such that a
case that relates to the same or similar facts will follow a prior decision on the same
point from a higher court in the same court hierarchy. This means that when a court
decides on a case it may make law, the decision in such a case not only decides the
matter for the parties but may apply to others in future relevant cases, unless it should
be overridden by Parliament’s legislation 28

26
See especially: Vines (n 5) 3; See generally: Gary Slapper, The English legal system 2013-2014
(Taylor and Francis, 14th ed, 2013); John Baker, An introduction to English legal history
(Oxford University Press, 4th ed, 2007); Augusto Zimmermann, 'Christianity and the Common
Law: Rediscovering the Christian Roots of the English Legal System' (2014) 16 University of
Notre Dame Australia Law Review 145-177.
27
Robert French, 'United States Influence on the Australian Legal System' (2018) 43(1)
University of Western Australia Law Review 11-29.
28
See: Vines (n 5) 5-6.

54
 This is just one source of law in Australia. The primary source of law is
legislation or statute law, which is created by the parliaments, both Federal, State and
Territories. Australia adopted the British Westminster system with regards to the
separation of powers between the legislature, executive and judicature. This means
that instead of a strict three-way separation it resembles a two-way separation, with
the courts being one limb and the legislature and executive being aligned. The latter
occurs through Ministers, as part of the Executive, also sitting in Parliament and
making law. For this reason, the independence of the Courts is essential to support
the rule of law. Vines29 has observed that ‘Australia’s law developed from the
traditions of the English common law, but it is not a mere outcrop of English law.’30
This means the Australian system and English legal system have developed
differently, even from the beginning, because Australian heritage was pragmatically
focused on a penal colony rather than the English system, which had evolved over
many centuries to accept greater entitlements for its citizens.31

The Jordanian legal system, by contrast, has been influenced by the civil law
system in which the primary source of the law is parliamentary legislation, and large
areas of this law are codified systematically. The judge in this system does not have
any role in creating the law, as in a common law system, and therefore is much less
influential. However, secondary sources of law exist, including Islamic law (Sharia),
which is derived from Islamic religious teachings that have legal implications for its
adherents.32 Another source of law is the Bedouin customary law, which existed
before Islamic law, even though some aspects of this law have been affected by the
rising Islamic religious laws.33 This law is only activated among the people who have
Bedouin background to solve problems related to incidents of bloodshed and issues
regarding women.34 In this way, Jordan can be described as having a plurality of legal
traditions that operate in tandem with the state system.35 In contrast, the Australian

29
Ibid.
30
Ibid.
31
Ibid.
32
See further, Noel James Coulson, A history of Islamic law (AldineTransaction, 2011) 3.
33
Muwafaq Al-Serhan and Ann Furr, 'Tribal Customary Law in Jordan' (2007) 4 South Carolina
Journal of International Law and Business 17.
34
Ibid.
35
See, e.g., Sally Engle Merry, 'Legal Pluralism' (1988) 22 Law and Society Review Journal 869;
John Griffiths, 'What is Legal Pluralism?' (1986) 18(24) The Journal of Legal Pluralism and
Unofficial Law 1-55; Caroline Roseveare, 'Rule of Law and International Development' (2013)
Department for International Development, 39.

55
 Indigenous customary law was not generally acknowledge in the legal system of
Australia. It was allowed practise in remote or isolated communities until John
Howard, as the Prime Minister of Australia, legislated in 2007 for its non-operation
in bail and criminal sentencing.36 However, the customs are still practised in some of
the remoter and wholly Indigenous communities. Besides, influences exist from
Indigenous customs in Australia. For instance, acknowledgment of restorative
Indigenous justice principles can be found in the adoption of circle sentencing
approaches to deal with underage Indigenous criminal offenders, and some states
using specialist Murri Courts for adult offenders.37

3.3 The Legal System

3.3.1 Federal and Unitary Legal Structure

The outline so far shows that while this thesis is comparing a civil law and a
common law system, there are many structural similarities. A clear difference exists
in that Australia has a federal system under a Federal Constitution 1901,38while
Jordan has a unitary system.39 This comparison is useful for this thesis because it ‘can
provide insights into the reasons behind the rapid expansion of mediation in common
law jurisdictions and the comparatively hesitant development of mediation in civil
law jurisdictions.’40 This can be important to determine both the legal forces and the
political forces behind the modern mediation movements in Australia and Jordan.

The federal system provides the institutions of law and government in duplicate.
There is a Federal legislature, situated in Canberra and composed of an Upper House
(Senate) and the Lower House (House of Representative) (Chapter I). The Executive
is composed of the Governor-General, the Prime Minister and Ministers of Cabinet
(Chapter II) and, the courts separately, in the Federal courts (Chapter III). Each of

36
See e.g., Northern Territory National Emergency Response Act 2007 (NT) ('NorthernTerritory
National Emergency Response Act '); Social Security and Other Legislation Amendment
(Welfare Payment Reform) Bill 2007 (Cth) ('Social Security and Other Legislation Amendment
(Welfare Payment Reform) Bill ').
37
Queensland Courts, 'Murri Court (March 2020) <https://www.courts.qld.gov.au/courts/murri-
court>; See further, Neate, Jones and Clarke (n 13) 1; Lane (n 12) 322.
38
Vines (n 5) 7.
39
Shetnawi (n 22) 10.
40
Nadja Alexander, 'What's Law Got to Do with It-Mapping Modern Mediation Movements in
Civil and Common Law Jurisdictions' (2001) 13(2) Bond Law Review 2.

56
 the six states and two Territories also has the full complement of institutions
(legislative, executive, and judiciary) under their own Constitutions.41 Even though
the Australian Constitution does not mention the role of Prime Minister, the primary
source of his or her power is found in the practices and customs that have developed
over hundreds of years in the British Parliament.42 These are often referred to as
constitutional conventions.

Jordan’s unitary system under the Constitution of 1952 gives central government
supreme power, and the administrative divisions exercise only powers that the central
government delegates to them. There is thus one source of legislative power for all
provinces provided by the Upper House (Senate), and the Lower House (Chamber of
Deputies) (Chapter V). The executive power is held by the national executive, the
King, Prime Minister and Council of Ministers (Chapter IV), and the judicial power
resides in one court system (Chapter VI). Unlike the Australian Constitution, the
Jordanian Constitution determines clearly the role of Prime Minister.43 It gives the
Council of Ministers the power to create a law that must be ratified by the King, to
describe the duties of the Prime Minister and the Council of Ministers.44

The Constitution of Jordan creates a parliamentary structure, with a hereditary

monarchy, like Australia, and it is described as a Constitutional Monarchy. However,
King Abdullah II,45 as the head of the three branches of power, the executive,
legislature, and judiciary, is present in the country and arguably is seen as more
influential. While the Commonwealth Constitution has structured the Australian
ruling system with the Queen of England, Elizabeth II, as the Queen of Australia, and
the Queen is part of the government as the head of the state, she is represented in the
Commonwealth and states by the Governor-General and Governors respectively.
Consequently, while the King has direct power over the three arms without any
representatives, this is different from the role of the Queen in Australia.

41
James Miller, Getting into Law (LexisNexis Butterworths, 2002) 164. Although note
exceptionally Qld only has one house of Parliament, it abolished its upper house and so is not a
bicameral system like the other States and Territories.
42
The Parliamentary Education Office, Fact Sheet – Prime Minister (March 2020)
<https://www.peo.gov.au/learning/fact-sheets/prime-minister.html>.
43
Jordanian Constitution ch 4 pt 2 art 47(ii).
44
Jordanian Constitution ch 4 pt 2 art 45.
45
Jordanian Constitution art 28.

57
 3.3.2 Separation of Powers

All countries require a system of laws to function correctly and to regulate

society, particularly as regards managing disputes. The law is a complex
phenomenon, which is created by society as ‘a prevalent social fact; it has endured
throughout history and is a weighty presence in all contemporary societies.’46 Many
legal philosophers have attempted to define the law, and these definitions have been
profoundly influenced by the political, economic, religious, and moral considerations
of the philosopher and the society in which they lived. 47 Merryman48 has identified
the legal system as,

a set of deeply rooted, historically conditioned attitudes about the nature

of law, about the role of law in the society and the polity, about the proper
organisation and operation of a legal system, and about the way law is or
should be made, applied, studied, perfected and taught.49

The current system in most countries relies on three essential arms to create,
administer, and interpret the law. These arms are the executive, legislature and courts,
and they have specific tasks, which is guided by a principle of the separation of
powers. Montesquieu formulated the separation of powers doctrine in 1748, in his
work the Spirit of the Laws,50 as a functional concept to ensure liberty.51 The
doctrine’s presence is necessary for the state to secure democracy and justice. This
doctrine exists in its purist form when the government is divided into three branches,
and each branch must practice its own functions without encroaching upon the other
branches’ functions.52 At its simplest, when the legislative branch creates laws, the
executive puts the laws in action, and the judicial power enforces its observance
through the courts, each branch acting independently. This includes the courts

46
Miller (n 41) 1.
47
Roger Cotterrell, The Sociology of Law: An Introduction (Butterworths, 2nd ed, 1992) 1.
48
John Henry Merryman, The Civil Law Tradition (Stanford University Press, 1969) 2.
49
Ibid.
50
Gerard Carney, 'Separation of Powers in the Westminster System' (1993) Parliamentary
Education and Training Services, Queensland Parliament.
51
M. J. C. Vile, Constitutionalism and the Separation of Powers (Liberty Fund, 2nd ed, 1998) 3.
52
Aileen Kavanagh, 'The Constitutional Separation of Powers' (2016) Philosophical Foundations
of Constitutional Law, 223.

58
 providing justice and assistance in protecting the citizens from the abuse of
government powers.53

However, the reality is often different from this pure model. As Vile54 states, the
separation of powers has ‘rarely been held in this extreme form, and even more rarely
been put into practice.’55 In Australia, the main factor is that Australia follows the
Westminster system of responsible government, which is based on the executive arm
(Cabinet and Ministers) also being part of the legislature.56 The executive, through
the Ministers in Cabinet, also has considerable influence in the appointment of the
senior judiciary through their selection and formal appointment process, and
ultimately through the Governor-General. At the state level in Australia, the
separation of powers doctrine is not entrenched but implied in the States’
constitutions, because they mention the three arms, the legislature, executive and
judiciary,57 to secure democracy and justice.58 Most important is that the state courts
are under the Federal court in hierarchy, and the doctrine of precedent has been a
basis for implying their independence and some level of separation of powers.59 This
provides for some separation of powers, at least at the judicial level, from the
executive and legislature.60

After Federation, Chapter 3 of the Commonwealth Constitution set out the

ultimate source of the power of Australian courts.61 The Australian courts are free to
exercise power without interference from the legislative and executive branches of
government.62 The independence of Australian courts is guaranteed in accord with

53
John Alvey, 'The Separation of Powers Between the Executive and the Judiciary ' (Conference
Paper, Australasian Study of Parliament Conference, 2017), 2.
54
Vile (n 51) 13.
55
Ibid.
56
Alvey (n 53) 2.
57
Rebecca Ananian Welsh and George Williams, 'Judicial Independence From the Executive: A
First-Principles Review of the Australian Cases' (2014) 40(3) Monash University Law Review
603.
58
Haig Patapan, 'Separation of Powers in Australia' (1999) 34(3) Australian Journal of Political
Science 391-407, 396.
59
See: the Kable full citation of case here case quoted in Vines (n 5) 4; see further, Kathleen
Foley, 'Australian Judicial Review' (2007) 6 Washington University Global Studies Law
Review 281-747.
60
See generally: Robert French, 'Essential and Defining Characteristics of Courts In an Age Of
Institutional Change' (2013) 23(1) Journal of Judicial Administration 3-13; Anthony Gray,
'Constitutional Right of Access to Courts In Australia: The Case of Prisoners' (2015) 24(4)
Journal of Judicial Administration 236-264.
61
See: David Jackson, 'The Australian judicial system : Judicial Power of the Commonwealth'
(2001) 24(3) The University of New South Wales Law Journal 737-746.
62
The Commonwealth of Australia Constitution Act 1901 (Cth) s 71 (' Constitution ').

59
 the doctrine of the separation of powers63 because s 72 of Commonwealth
Constitution protects the position of those who are appointed to judicial office. The
appointment of a judge is only by the Governor-General in Council, and they work
in the Judiciary until reaching their retirement age, which is 70 years. Australian
Judges enjoy security of tenure, and only the Governor-General can remove a judge,
if they prove the judge’s misbehaviour or incapacity before both the House of
Representatives and Senate, in the same session.64 The best example of this is the
infamous case involving the attempted removal of Justice Lionel K. Murphy (a
former Labor Attorney-General) from the High Court in the mid-1980s.65
Remuneration is set by Parliament, but they cannot cancel or reduce this amount
during the judges’ time in office. 66

In Jordan, the situation with the separation of powers is similar to Australia as

the Constitution acknowledges the separation of powers, and that the three branches
operate independently.67 The law-making power is exercised by the legislative
members in the same manner as in Australia. The King's role is to ratify the laws,
and he promulgates and signs off on legislation in a very similar manner to the
Queens representative, the Governor-General, in Australia. The executive power
rests with the King and his Minister in the cabinet. This is the same as Australia in
that the Ministers in Cabinet and Prime Minister are part of the Executive branch.

As with Australia, the Jordanian Constitution may not apply the pure form of the
doctrine of separation because it offers the principle of cooperation between the
legislative and executive branch, which establishes an interdependence with these
powers.68 For example, the executive arm members, the Ministers, can submit a draft
of a law to the House of Representatives, who can then reject, amend or pass the
draft. The executive arm is responsible, through the legislative arm, due to the
adoption of a Westminster system of responsibility. This is similar to Australia, as a

63
See generally, Peter Gerangelos, 'Separation of Powers in the Australian Constitution: Themes
and Reflections ' (2017) 29 Singapore Academy of Law Journal, 904.
64
Constitution Chapter III, s 72.
65
Nicholas Cowdery, 'Reflections on the Murphy trials' (2008) 27(1) University of Queensland
Law Journal 5-21.
66
Constitution.
67
Eman Frehat, 'The Seperation of Powers Doctrine in Successive Jordanian Constitutions and
its Amendments 1928-2011: Historical Study' (2016) 43(2) Humanities and Social Sciences
Journal, 784.
68
Mousa AlQaaida, 'The Separation of Powers in the Jordanian Constitution ' (2017) Journal of
the Science University of Allam and Karanak, University of Pécs 142.

60
 result of the British influence. Like Australia, this also includes the possibility of the
executive power dissolving the parliament or postponing its sessions.69

The judiciary is considered independent of any influence from the other arms, as
guaranteed in the Constitution of Jordan 1952. However, like Australia, there is
involvement of the other branches in both the appointment and dismissal of judges
through the King or Governor General.70 The King can also remit the sentence
delivered by a Court,71 while the Governor-General in Australia has a like-Royal
prerogative of mercy to remit a sentence, but this is rarely activated.72 Thus, the
separation of powers doctrine, as an essential concept to the idea of democracy, is
more a two-way separation and does not exist in either Jordan or Australia in its
purest form, due to the British colonial influence in both countries’ legal systems.

In Jordan, the independent judicial branch is guaranteed by Articles 97 to 101 of

the Jordanian Constitution and Article 3 of the Jordanian Judicial Independence Act
2014. The latter confirmed that the judiciary is independent and guarantees its
impartiality and integrity. Also, judges are prohibited from assuming jobs outside the
judiciary to ensure complete impartiality.73 So, the judges in a Jordanian court are
independent in exercising their judicial functions, and no authority can interfere in
their functions as protected by the law.

Nevertheless, a challenge to this pure independence occurs in the process of the

appointment and dismissal of a judge. The High Judicial Council is the main body
responsible for looking after the judge’s needs, such as appointment, training, and
retirement requirements. However, it does not have its own budget to carry out its
mandate independently,74, even though the President of the Council has considerable

69
Jordanian Constitution ch 4 pt 1 art 34. See for example: The dismissal of the Whitlam
government by Governor-General in 1975 and the dismissal of the parliament by the Jordan's
king in 2012.
70
Sami Alomari, 'Jurisdiction of the King in Royal Regulations: A Comparative Study' (2018) 78
Journal of Law, Policy and Globalization 68, 72; The Jordanian Constitution Act (n 24) ch 6
art 98.
71
Jordanian Constitution ch 4 pt 1 art 38.
72
Constitution Act s 61.
73
The Jordanian Formation of Ordinary Court Act 2019 (Jor) art 17 ('The Jordanian Formation
of Ordinary Court Act').
74
International Federation for Human Rights (FIDH), 'Judicial Councils Reforms for an
Independent Judiciary: Examples from Egypt, Jordan, Lebanon, Morocco and Palestine'
(2009), 12.

61
 authority to increase wages.75 According to 13/A of the Jordanian Judicial
Independence Act 2014, judges are appointed by the High Judicial Council upon
recommendation of the Minister of Justice, who is representative of the King.76 Also,
a decision of the Council with a High Royal Decree can dismiss, terminate the
service, or lower the rank of the judge.77 So, the method of recruitment and dismissal
of judges can possibly affect their independence, as it is not conducted by an
independent body, but this is similar to the appointment and dismissal of judges by
the Government through the Executive in Australia.78

3.3.3 The Legislature

The Australian legislative power is present in both State and Territory

parliaments and the Federal Parliament. The Commonwealth, a Federal Parliament,
and State Parliaments share legal and political power within the system described as
federalism.79 The legislatures are responsible for making the written law, in the form
of acts or statutes and also regulations. The system is based on two houses in a
bicameral legislature, although in the state of Queensland, which is a unicameral
legislature.80 The basic structure of Federal Parliament is described in chapter one of
the Commonwealth Constitution, and it consists of three elements:81 the Queen
(Governor-General in Council as her representative);82 the House of Representatives
as the lower house;83 and the upper house is Senate.84 The upper house is composed
of senators for each State, directly chosen by the people of the State. 85 The lower
house is composed of members directly chosen by the people of the Commonwealth,
and the number of members in this house is twice the number of the Senators.86 The

75
Jordanian Judicial Independence Act 2014 (Jor) art 3 (c) and art 20 ('Jordanian Judicial
Independence Act ').
76
Jordanian Judicial Independence Act, art 13 (A).
77
Jordanian Judicial Independence Act, art 25.
78
(FIDH) (n 74) 21.
79
Constitution s 3.
80
Miller (n 41) 195.
81
Constitution ch 1 pt 1 s1.
82
Constitution ch 1 pt 1 s 2 states ‘A Governor-General appointed by the Queen shall be Her
Majesty's representative in the Commonwealth, and shall have and may exercise in the
Commonwealth during the Queen's pleasure, but subject to this Constitution, such powers and
functions of the Queen as Her Majesty may be pleased to assign to him.’
83
Constitution ch 1 pt 3.
84
Constitution ch 1 pt 2.
85
Constitution ch 1 pt 2 s 7.
86
Constitution ch 1 pt 3 s 24.

62
 Commonwealth House of Representatives has a three-year term, but it may be
dissolved earlier by the Governor-General and Governor in the case of the state.87
Each component of parliament has a crucial role in the lawmaking process.88 A Bill
does not become law until it has gone through both Houses and has been signed and
proclaimed by the Governor-General, or Governors in the States, as the Queen’s
representative.89

The statute law in Australia must pass both houses before it becomes law. The
first stage in creating the law is when a draft bill is introduced to Parliament by a
Minister or member. It goes through three reading stages and is then voted on, and
any amendments are made, after which it goes to the other House for the same
process. When a bill has passed both Houses, it will be presented to the Governor-
General for assent. If the Governor-General, in the name of Her Majesty, assents to
the bill to be published in the Government Gazette, the bill becomes an Act of
Parliament and part of the law of Australia.90 The Queen, through her representative
in Australia, has the ability to check any law, and according to s59, any law can be
disallowed within one year from the Governor-General's assent, but this has never
been acted upon.91

The States remain free to make laws about any topic as long as they do not cover
the same area of law as a law of the Commonwealth Government. The law-making
power is specified centrally in the Constitution under s51. Once a federal law is made
on any of the topics covered in s51 and that law covers the field (s109), the State
cannot make a competing law on that topic. If there is a dispute between the law-
making powers, s109 of the Constitution provides the solution that the Federal law
will take priority. The areas not covered by s51 are residual topics that the States and
Territories are left free to make law.92

The King and the Parliament, like Australia, represent the legislative authority
in Jordan. Jordan’s Constitution established a bicameral council, with two houses;
the upper house is the Senate and the lower house is the National Assembly. The

87
Constitution ch 1 pt 3 s 28.
88
Constitution ch 1 pt v.
89
Constitution ch 1 pt v s 58.
90
Constitution ch 1 pt v.
91
Constitution ch 1 pt v s 59.
92
Constitution ch v s 109.

63
 upper house is formed by less than half the number of members as in the House of
Representatives.93 Unlike Australia, the King appoints the Senate, and the members
must serve four years.94 They are chosen from people who may work in senior
positions in the state, such as a person who previously was Prime Minister, Minister,
ambassador, former president of the Court of Cassation and the Civil and Sharia
Courts of Appeal and so on.95 This is different from the Australian Senate, which is
directly chosen by the people of each Australian state through a compulsory voting
system for all citizens over 18 years old.96 The House of Representatives in Jordan is
elected in a similar manner to Australia, by a secret vote in a direct general election
every four years for all citizens over 18 years old.97 As I with the Governor-General
in Australia, the King in Jordan has power to suspend the period of the elected
National Assembly and dissolve it.98

The primary source of law in Jordan as a civil law system is legislation, as the
written law passed by parliament. This system is based on a tradition of codes, which
relates back to Napoleon’s French Codes.99 Over the years Parliament has passed
several codes, such as the civil and criminal law codes..100 The Criminal Law Code
defines prohibited conduct, applies punishment for criminal offences and regulates
the court procedures.101 The term civil law has been used in this thesis up until this
point to refer to the legal system applicable in Jordon. It can also be a term used to
refer to laws that do not deal with crime, but that regulate other general areas of
society such as contracts, commercial business operations, and other private law
domains. The Civil Codes102 regulate the matters capable of being brought before a

93
Jordanian Constitution ch 5 pt 1 art 63.
94
Jordanian Constitution ch 5 pt 1 art 63.
95
Jordanian Constitution ch 5 pt 1 art 64.
96
Constitution ch 1 pt 2 s7.
97
Jordanian Constitution ch 5 pt 2 art 67- 68.
98
Jordanian Constitution art 34.
99
Maria Luisa Murillo, 'The Evolution of Codification in the Civil Law Legal Systems: Towards
Decodification and Recodification' (2001) 11 Journal of Transnational Law and Policy 163,
164.
100
Shetnawi (n 22) 50.
101
The Panel Code 1960 (Jor) ('The Jordanian Panel Code 1960'); The Criminal Procedure Act
1961 (Jor) ('The Jordanian Criminal Procedure Act'). See further, Netham Tawfiq AlMajali,
Explanation of the Jordanian Penal Code (Dar Alelim and Thaqafa for Publishing and
Distribution, 2005) 5; Mohammad Sa'ed Namour, Criminal Procedures: Explaning of the Law
of Jordanian Criminal Procedures (Dar Althaqafa for Publishing and Distribution 4ed, 2018).
102
The Civil Law Act 1976 (Jor) ('The Jordanian Civil Law Act'); The Civil Procedure Act 2017
(Jor) ('The Jordanian Civil Procedure Act '); The Magistrate Courts Act 2017 (Jor) ('The
Jordanian Magistrate Courts Act '); The Evidence Act 1952 (Jor) ('The Jordanian Evidence

64
 civil court, the applicable procedure, and the appropriate resolution of civil and
commercial matters.

In general, the Jordanian courts can also apply the available Sharia principles,
natural justice principles and customs if there were no written rules to use in a specific
case. Moreover, the judges in Jordan also can refer to precedents as a non-binding
source for legal provisions, along with jurisprudence.103 However, all legal rules that
are applied by the courts are codified. There are two dimensions in the codification
system. The first, the Constitution, is considered as the highest legal instrument, and
all other laws must observe its general principles and rules. The second dimension is
the legislation. Just as in Australia, the laws enacted by the parliament must follow
the boundaries of the Constitution; the legislated law is the primary law, and after
that come the regulations which are made by the executive authority. In Australia,
there is the additional common law, which is made by the Judges through the cases.

Jordan follows a very similar process to Australia in creating written law. The
central role for the elected House of Representatives and Senate is to create laws
essential to Jordan’s people and the country’s advancement. There are several stages
in enacting the law. If there is a draft law and the House of Representatives and
Senate are sitting, they first discuss this law.104 After the House of Representatives
has accepted, by vote, and amended, the draft law, they refer the draft to the Senate.105
Thus, the law must pass both the House of Representatives and the Senate, and be
ratified by the King to be published in the Official Gazette. As in Australia, where
the Governor-General invariably will assent to the legislation, the King also
invariably assents, even if both the King and the Governor-General have the right to
withhold consent on the law that is passed by Parliament. If the King does not ratify
the law, he will refer it back to the Parliament within six months, accompanied by a
statement explaining his reasons. If a draft law, which is not approved by the King,
is passed for a second time by two-thirds of both Houses, it will be considered as

Act'); The Mediation for Settle the Civil Dispute Act and its amendment (No 12) 2006 (Jor)
('The Jordanian Mediation Act 2006').
103
The Jordanian Civil Law Act art 2.
104
In case the law covers urgent matters that cannot be delayed, and the House of Representatives
and Senate are not sitting, or they are dissolved, the Council of Ministers, with the approval of
the King, has the power to enact it. See: Jordanian Constitution art 94.
105
Jordanian Constitution arts 91, 92 and 95.

65
 official law.106 By comparison, the Governor-General, as the Queen's representative,
also has the same authority to return the proposed law to the parliament with some
recommendations.107

3.3.4 The Executive

The executive power in Australia and Jordan is not remarkably different. In

Australia, the Executive consists of the Governor-General, at the federal level, and
Governor at the state level as the Queen’s representative. This executive tie to Britain
means Australia is not yet fully independent from the British monarch. This would
happen if, and when, Australia decides to become a republic. The Ministers, as heads
of government departments and portfolios, the police, and military are also part of
the executive power. The Ministers, as part of the executive, also sit in the legislature
and participate in lawmaking, in a process reflecting the Westminster system of
responsible government. Therefore, as explained previously, the independence of the
courts is paramount to maintaining some separation of powers.

Similar to Australia, in Jordan, the executive is comprised of the King and his
cabinet, the cabinet is formed of the Prime Minister and a certain number of
ministers, as required by the public interest.108 The King is the head of this power,109
and he practices his executive function through his ministers. The real executive
power is the cabinet; they are responsible in Parliament for the general daily political
functions, and every minister is responsible to Parliament for their Ministry.110
Hence, it is really the cabinet, not the King that is charged with the responsibility of
running all internal and external affairs of the state.111

Unlike Jordan, the Prime Minister in Australia, as the head of executive

government, is not mentioned by the Commonwealth Constitution. There is no
provision for a Prime Minister in any Constitution around Australia other than the

106
Jordanian Constitution art 93.
107
Constitution s 58.
108
Jordanian Constitution ch 4 pt 1 art 35.
109
Jordanian Constitution ch 4 pt 1 art 30.
110
Jordanian Constitution ch 4 pt 2 art 52.
111
Jordanian Constitution ch 4 pt 1 art 45.

66
 government, when it has formed a majority, being able to elect a leader. According
to Weller112, the powers of the Australian Prime Minister are assumed rather than
specified because it is not based on the law.113 This means that the Prime Minister’s
choices can be influenced by external political actors.114 In contrast, the Prime
Minister is mentioned clearly in the Jordanian Constitution, in which his powers and
competences are determined.115

3.3.5 The Judiciary

The third branch of government is the judiciary, which, as explained, is the most
independent branch from the other branches of government, to ensure the liberty and
rights of the individuals in society.116 It is through the courts that citizens have their
disputes resolved, by judges as independent third-party impartial interveners
deciding the outcome of their disputes. The method for delivery of justice and dispute
resolution in Australia and Jordan is different. Comparative legal scholars have
classified the current global justice system into two models: the adversarial and
inquisitorial system.117 The adversarial model is followed in common law countries
like Australia, whereas the inquisitorial approach, which originated in Roman law,
operates in the civil law countries such as in Jordan.118

The adversarial legal system sees the parties, through their respective legal
representatives, often barristers, argue the merits of the parties’ case and attempt to
undermine or discredit their opponents’ case.119 This system focuses on four

112
Patrick Weller, 'Administering the Summit: Australia' in B. Guy Peters, Roderick Rhodes and
V. Wright (eds), In Administering the Summit: Administration of the Core Executive in
Developed Countries (Macmillan, 2000), 60.
113
Ibid.
114
See e.g., Anne Tiernan, 'Advising Howard: Interpreting changes in advisory and support
structures for the Prime Minister of Australia' (2006) 41(3) Australian Journal of Political
Science 309-324.
115
See e.g., The Jordanian Constitution Act (n 24) art 47 and 48.
116
Kristy Richardson, 'A Definition of Judicial Independence' (2005) 2 University of New England
Law Journal 75, 77.
117
John Anthony Jolowicz, 'Adversarial and inquisitorial models of civil procedure' (2003) 52(2)
International and Comparative Law Quarterly 281-295, 282; Michael Block et al, 'An
Experimental Comparison of Adversarial Versus Inquisitorial Procedural Regimes' (2000) 2(1)
American Law and Economics Review 170-194, 171.
118
Francesco Parisi, 'Rent-Seeking through Litigation: Adversarial and Inquisitorial Systems
Compared' (2002) 22(2) International Review of Law and Economics 193-216, 195.
119
Robert Thomas, 'From “Adversarial V Inquisitorial” to “Active, Enabling, and Investigative”:
Developments in UK Administrative Tribunals', The Nature of Inquisitorial Processes in
Administrative Regimes (Routledge, 2016) 65-84, 70.

67
 components: the courtroom, the judge, the lawyers (solicitor/barrister), and juries
(mostly only present in criminal matters). The system sees the courtroom as a field
in which the contest is between two equally situated opponents, much like a combat
in which only one can win.120 The court in this system is governed by a set of strict
procedural and evidentiary rules.121

Furthermore, the judge's role is minimal compared to a civil law judge. The
judge in an adversarial court ensures the rules of procedure and evidence are observed
by the parties, and makes a final determination, on the balance of probabilities, in
civil cases based on the facts and law argued before the judge. The lawyer or
barrister’s122 role is to conduct their client’s case, by producing witnesses and
evidence, and to cross-examine and test the other side’s evidence. The parties,
therefore, have control over their case as they instruct their lawyers but take their
independent counsel.123 A jury, used in a criminal case, is comprised of twelve
ordinary people, who do not have any legal training and attend the court session to
decide on the facts of the case.124 Juries in Australia are present in criminal matters
and only used in civil cases in some jurisdictions, for instance in defamation tort
cases.125

In contrast, the inquisitorial model provides ‘less opportunity for litigants to

shape their cases and control the legal narratives in the trial.’126 In Jordan, the control
over the process is shifted to the court, the judge, and judicial officials such as the
police and prosecutors, all whom have a more active role in criminal justice than the
parties. Prosecutors have the status of the judge, but they are considered more as an
agent of the state.127 The lawyer in this system has a minor role in the criminal trial,

120
Jolowicz (n 117) 281.
121
Parisi (n 118) 195.
122
The basic difference between barristers and solicitors is that a barrister mainly defends people
in court and a solicitor mainly performs legal work outside court. See e.g.: Koli Ori Akpet,
'The Australian Legal System: The Legal Profession and the Judiciary' (2011) 4 Law Journal
Library Ankara Bar Review 71, 75.
123
Janet Ainsworth, 'Legal Discourse and Legal Narratives: Adversarial Versus Inquisitorial
Models' (2017) 2(1) Language and Law Linguagem e Direito, 1-3.
124
Michael Chesterman, 'Criminal Trial Juries in Australia: From Penal Colonies to a Federal
Democracy' (1999) 62(2) Law and Contemporary Problems 69-102, 74; Michael Black, 'The
Introduction of Juries to the Federal Court of Australia' (2007)(90) Reform 14-16.
125
The Defamation Act 2005 (NSW) s 21 ('The Defamation Act'); Federal Court of Australia Act
1976 (Cth) ss 39-40 ('Federal Court of Australia Act ').
126
Ainsworth (n 123) 8.
127
Namour (n 101) 75.

68
 and their role is ‘ensuring that justice is seen to be done, rather than ensuring that it
really is done’.128 However, this thesis will not focus on the difference in the criminal
law arena but will instead concentrate on the civil trial process.

The primary role of the presiding judge in the inquisitorial system in civil
proceedings is to take charge of the case and case management. The Judge has full
control of the proceedings and governs the participation of the parties.129 The
lawyers’ role in civil courts is to advise the client about the legal points and create
the statement of claim or the plea statement, and submit it to the court registry.130
This role is similar to the lawyer’s role in the adversarial system; however, the lawyer
in the latter system has more control over the trial than in the inquisitorial system.131

In a civil case where there is no jury, the judge will also apply the relevant law
to the evidence, to determine the outcome and resolve the dispute by deciding a
winner. The case in this system is considered to be under the parties’ control. This
occurs by them taking advice from their legal representative who guides them in the
law and organises the case in a way that may best suit them in order to achieve a
winning outcome. This process is not completely a result of the parties’ efforts, and
the judge reaches the decision based not only on the evidence presented by parties.132
The judge can intervene, call witnesses, and ask for evidence directly, and they can
ask more questions rather than letting the parties, through their lawyer, decide what
evidence is called.

The clear distinction between the Australian adversarial and the Jordanian
inquisitorial systems is shown by the different power relations in each system.133
When the case is organised and the facts are delivered by the litigants, it is the
adversarial system, but when the trial is dominated by a presiding judge, determining
what evidence and the order taken to evaluate the gathered evidence, it is an

128
Jacqueline Hodgson, 'The Role of the Criminal Defence Lawyer in Adversarial and
Inquisitorial Procedure' (2008) The Research Gate 45-59.
129
Bron McKillop, 'Inquisitorial Systems of Criminal Justice' (1994) Current Issues in Criminal
Justice 36, 50.
130
The Civil Procedures Act 1988 (Jor) art 56 ('The Jordanian Civil Procedures Act').
131
David Weiden, 'Comparing Judicial Institutions: Using an Inquisitorial Trial Simulation to
Facilitate Student Understanding of International Legal Traditions' (2009) 42(4) Political
Science and Politics 759-763.
132
Parisi (n 118) 5.
133
Ibid 2.

69
 inquisitorial system. Australian courts can only decide the outcome of a case through
using the evidence that is presented in the hearing. The Judge cannot go looking for
other evidence or calling witnesses, as occurs in the Jordanian courts.134 Another
important distinction is that the Judges in Australia will each, generally, write up
their judgment and reasons for their decisions, as this forms the basis of any new case
law. Therefore, judges who dissent from the decision of the majority will also provide
detailed written reasons. This is important as the dissenting arguments may be used
by lawyers in subsequent cases where they argue the facts are different, or where
there are good grounds for the law to change and follow a different direction. The
civil court decisions in Jordan generally only have one written decision provided, as
there is no argument or dissent in the sense that they are only applying the law. They
do not create new law but only interpret and apply the written law.

The judiciary through the courts are an essential source of law in the Australian
legal system and have a critical role in creating and applying the laws. Australian
courts, as noted previously, follow the British courts’ construct of delivering case
law through a process of applying precedent, in which similar cases are decided alike,
thus developing a common law.

The Australian Judicial system is also a federal system with Commonwealth and
State and Territory Courts, based on a hierarchical structure.135 Most ordinary cases
begin in the lowest court, which has jurisdiction and travel upward through the
appellate hierarchy if they have the right to appeal.136 The Federal courts include the
High Court, which is the highest court in the Commonwealth hierarchy. Williams137
describes the High Court’s role as providing a ‘unifying umbrella’ over all the courts,
both state and federal, providing a court of appeal from the Supreme Courts of the
States, and from the other federal courts.138 It is the final court of appeal and deals
with matters relating to the Constitution and its interpretation, and in so doing it not

134
The Jordanian Criminal Procedure Act, art 162(2).
135
Akpet (n 122) 85.
136
However, some cases may travel to a different direction, it may remove directly to the High
Court if the law needs more interpretation. For instance, s 73(3) of the Criminal Law
Consolidation Act 1935 (SA) was inconsistent with s 114(2) of the Family Law Act 1975
(Cth). See: Vines (n 5) 312.
137
Hon Daryl Williams, 'The Judicial Power of the Commonwealth' (2001) 79 Reform 60-63.
138
Ibid.

70
 only addresses the limits and constitutionality of any federal law but also ultimately
the common law for all the jurisdictions.139

While the Commonwealth Constitution established the High Court, in Chapter

III, it also gave the Federal Parliament power to create other federal courts besides
the High Court. These courts are covered in the Federal Court of Australia Act
1976.140 The jurisdiction of such courts is limited to the topics covered in s51 of the
Constitution, and so they cover matters such as bankruptcy and marriage law.141
From 1988 to 1999, three federal courts were established. Firstly, the Family Court,
as a federal superior court of record,142 specialises in cases related to family disputes
such as marriage, marital property, and custody of children. The second court, the
Federal Circuit Court of Australia, was established as a Federal Magistrates Service
to handle less complicated matters in family law143 and administrative law.144 Lastly,
the Bankruptcy Court was established as a Federal Court or the Federal Circuit Court
to handle financial debt cases.145

The State and Territory court hierarchies in the Australian states and territories
consist of the Supreme Court, the District Court, the Magistrates Court, and other
specialist courts. The Supreme courts are ‘the senior court in the system [and they
have] unlimited jurisdiction.’146 These courts can hear civil cases, which are above
the jurisdictional limits of the inferior courts, and the most serious criminal matters
such as murder.147 The Supreme Court can also be held as Court of Appeal to hear
all appeals in cases such as defamation and murder from the Supreme Court (single

139
Kathy Mack and Sharyn Roach Anleu, 'Entering the Australian Judiciary: Gender and Court
Hierarchy' (Pt Blackwell Publishing Inc) (2012) 34(3) Law & Policy 313-347, 315.
140
Federal Court Of Australia Act 1976 (Cth) s 5(2) ('Federal Court Of Australia Act').
141
Jurisdiction of Courts (Miscellaneous Amendments) Act 1987 (Cth) ('Jurisdiction of Courts
Act').
142
The Family Law Act 1975 (Cth) ('The Family Law Act ').
143
Ibid.
144
The Administrative Decisions (Judicial Review) Act 1977 (Cth) ('The Administrative Decisions
Act'); The Administrative Appeals Tribunal Act 1975 (Cth) s 44AAA ('The Administrative
Appeals Tribunal Act ').
145
Federal Circuit Court (Bankruptcy) Rules 2016 (Cth) ('Federal Circuit Court (Bankruptcy)
Rules ').
146
Miller (n 41) 270.
147
Vines (n 5) 300.

71
 judge) and District Courts. The appeals usually go from a single magistrate or judge
in the same court level to a panel of two or three judges on appeal.148

The District Courts are ‘intermediate courts of record with jurisdiction limited
by their enabling act.’149 These courts deal with serious criminal cases with sentences
under a specific limit, such as 14 years goal.150 A judge and jury hear the criminal
cases.151 District Courts also deal with complex civil cases where the cost is generally
between $150,000 and $750,000.152 Magistrate’s Courts are extremely important
courts where most cases are heard and decided by a magistrate sitting alone.153 The
Magistrate’s Courts hear civil cases when the claim is $150,000 or less,154 and
criminal matters will be heard in cases that carry a maximum penalty of less than two
years.155

The Jordanian Constitution covers the judiciary in chapter 6 articles 97-110.

Article 99 defines the types of courts, and it states that the courts shall be of three
types: regular courts, religious courts, and special courts. Regular courts can exercise
their jurisdiction on the issues related to civil and criminal matters. This includes
cases brought by or against the government, except cases raising the constitution or
other laws that are decided by special courts.156 Article 100 of the Constitution gives
the Parliament power to establish a special law that identifies the regular courts'
categories, their divisions, their jurisdiction and their administration. A number of
pieces of legislation have been passed under this power, thereby changing the court
structures over time. The Formation of Ordinary Court Law was enacted in 1952,

148
See e.g., The Civil Proceedings Act 2011 (Qld) ('The Civil Proceedings Act '); Supreme Court
of Queensland Act 1991 (Qld) ('Supreme Court of Queensland Act'); Criminal Code Act 1899
(Qld) ch 67 ('Criminal Code Act '); Criminal Practice Rules 1999 (Qld) ch 15 ('Criminal
Practice Rules '); Nicholas Aroney, 'The High Court of Australie: A Federal Supreme Court in
a Common Law Federation' (2017) Fédéralisme Régionalisme.
149
District Court Act 1973 (NSW) ('District Court Act of New South Wales'); District Court of
Queensland Act 1967 (Qld) ('District Court of Queensland Act '); District Court Act 1991 (SA)
('District Court Act of South Australia'); County Court Act 1958 (Vic) ('County Court Act ');
District Court of Western Australia Act 1969 (WA) ('District Court of Western Australia Act ').
150
See generally: DPP v Shandley (2017) VCC 279 ('DPP v Shandley '); DPP v Matheas (2016)
VCC 1521 ('DPP v Matheas').
151
Akpet (n 122) 89.
152
Queensland Court, 'District Court' <https://www.courts.qld.gov.au/courts/district-court#>.
153
Vines (n 5) 302.
154
Queensland Court, 'About the Magistrates Court’ (March 2020)
<https://www.courts.qld.gov.au/courts/magistrates-court/about-the-magistrates-court>.
155
Miller (n 41) 270.
156
See e.g., Administrative Justice Act 2014 (Jor) ('Administrative Justice Act').

72
 then it was replaced in 2001 with Formation of Ordinary Courts Act, which was
further amended in 2019.157

The regular courts exist in a four layered hierarchy: Magistrate Courts, Courts
of First Instance, Courts of Appeal, and the Supreme Court.158 Alzouby159 states the
Jordanian judicial system has two levels of courts.160 The first level, which
adjudicates on a dispute for the first time, are the Magistrate Courts161 and the First
Instance Courts.162 Magistrate’s Courts (Sulh) are single judge courts established in
all Jordanian governorates. Much like the Australian Magistrate’s Courts, they hear
minor civil matters that cost approximately less than JOD 10.000, and criminal cases
with a maximum penalty of two years. Magistrate’s Court decisions may be appealed
before the Courts of First Instance.163 First Instance Courts are established in all
Jordanian governorates, and each court is composed of a president and several
judges. The First Instance Courts have jurisdiction to adjudicate all civil and criminal
matters that are beyond the jurisdiction of the Magistrate’s Courts.164

The second level is the Court of First Instance as Appellate and Courts of
Appeal,165 which hear all appeals from the first level of courts. The Courts of First
Instance, as Appellate Courts, are second-tier courts with limited jurisdiction, so they
are not competent to hear an appeal unless a particular provision of a Code or
legislation gives this authority. For instance, the Magistrate Court Act 2017, section
9A gives the power to appeal a judicial decision that is issued by the Magistrate's
Court in civil cases if the cost of the case does not pass JOD 1000. As an appeal
court, the court is composed of one judge in civil cases and 1-3 judges in the criminal
cases. If the case has two judges and they disagree during the trial or in determining
the final decision, the President of the Court shall invite another judge to participate
in the trial from the stage at which they reached an impasse.166 Courts of Appeal,

157
The Jordanian Formation of Ordinary Court Act.
158
Ibid art 4(2).
159
Awad Ahmad Alzouby, Brief about Jordanian Civil Procedures Law (Ethraa for Publishing and
Distribution 3ed, 2016) 86.
160
Ibid.
161
See: The Jordanian Magistrate Courts Act.
162
See: The Jordanian Formation of Ordinary Court Act, arts 4-5.
163
The Jordanian Magistrate Courts Act, arts 3-4.
164
The Jordanian Formation of Ordinary Court Act, art 4.
165
See: The Jordanian Civil Procedures Act, arts 6-8.
166
The Jordanian Formation of Ordinary Court Act, art 5.

73
 which are second-tier courts with general jurisdiction, 167 review criminal and civil
sentences from any Court of First Instance and the Magistrate’s Court.168 The Courts
of Appeals are established in Amman, Irbid and Ma’an. Each court is composed of
three judges as a maximum, and they issue their decisions by consensus.169

Finally, the Court of Cassation is the final stage of litigation in Jordan. There is
one Court of Cassation in Jordan, which is in Amman, and it is comprised of 5-8
judges depending on the case.170 Alzouby171 argues that the Court of Cassation is not
considered as a subject court that is involved in litigation, but it is considered as a
court of law.172 This means that this court is not considered as a third layer in the
Jordanian justice system, but as a final reference for litigation. This court plays an
important role in clarifying legal points or to resolve complicated issues, or review
appeal court decisions when it is considered an essential matter more generally.173
Also, the Court of Cassation oversees courts of all types as a final appeal court to
ensure the laws are applied uniformly.174

The role of the religious courts, which are definitely different from the Australian
system, is clarified in the Jordanian Constitution Article 104-109. They exercise
jurisdiction in issues related to personal matters such as marriage, and divorce. In
Australia, marriage and family law is considered public law, and therefore the
concern of the State, and it is dealt with by the specialist Federal Family Court. In
Jordan, the religious courts are divided into the Sharia Courts for Muslims and the
Tribunals of other Religious Communities (non-Muslims). Sharia Courts are subject
to the Formation of Sharia Courts Act 1972.175 There is a tier of two levels: the First
instance Sharia Court and Appeal Sharia Court. The Jordanian Constitution
demonstrates that Tribunals of Religious Communities shall be established in

167
Alzouby (n 162) 93.
168
The Jordanian Formation of Ordinary Court Act, art 9.
169
Ibid art 7.
170
Ibid art 9.
171
Alzouby (n 159) 92.
172
Ibid.
173
The Jordanian Civil Procedures Act, art 191; The Jordanian Formation of Ordinary Court Act,
art 10.
174
Alzouby (n 159) 92.
175
The Formation of Sharia Courts Act 1972 (Jor) ('The Formation of Sharia Courts Act ').

74
 accordance with Religious Communities provisions, such as those contained in the
Religious Communities Act 1938.

Lastly there are special types of courts, known as Special Courts, which exercise
limited jurisdiction in specialised areas such as the Income Tax Court of Appeals, the
Military Court, and National Safety Court. In Australia there is also a separate
military court martial system, but generally any specialised courts are now addressed
as tribunals in Australia.

3.3.6 Australian Tribunals

Each Australian state has a burgeoning number of tribunals,176which are created

by specific Acts of the State or Territory parliaments. Australian Tribunals are often
designed to operate along the lines of an inquisitorial system. Developed since at
least the mid-1970s,177 tribunals are a relatively recent phenomenon that has arisen
because new areas of regulation have emerged, and the change in the dominant
approach to resolving or managing disputes has required a reduction in the
involvement of lawyers using the adversarial approach.178 Establishing tribunals is
part of the desire to reduce costs by making the system less adversarial and rule
bound, thus reducing the need for lawyers, in order to provide a quicker and cheaper
decision-making mechanism.

A tribunal cannot be considered as a court for several reasons. The tribunal

adopts the inquisitorial model and often a Tribunal member does not need to be a
lawyer, although they can be legally trained. The Tribunal member hears matters and
is responsible for the whole process such as testing the evidence, deciding what
evidence is required, and questioning the witness in a less formal process.179 Federal
tribunals exercise federal power as provided for under the Constitution; for example,
administrative power is addressed at the first level by the Administrative Appeals

176
Vines (n 5) 304.
177
John McMillan, 'Administrative Tribunals in Australia: Future Directions' (2006 ) The
International Tribunals Workshop, Australian National University, 2.
178
Miller (n 41) 271.
179
Narelle Bedford and Robin Creyke, Inquisitorial processes in Australian Tribunals (The
Australian Institute of Judicial Administration Incorporated, 2006) 5.

75
 Tribunal (AAT).180 Each tribunal is created by an Act of Parliament, which
determines the limits of its jurisdiction and the manner in which it will make
decisions. Genn clarified that the tribunal is ‘the only mechanism provided by
parliament for the resolution of certain grievances against the state and for some
specific disputes between individuals.’181 Tribunals can use a conciliation process,
which is much like a mediation in which the parties and their lawyers negotiate
through a process overseen by a Tribunal conciliator. These tribunals are subject to
review in the administrative law jurisdiction of the Federal Court.182

The AAT is like a super Tribunal covering a specialised area of law, namely
administrative law, as it applies across broad pieces of legislation at a Federal level.
Such specialised super tribunals also exist at the State level and include a tribunal
hearing and deciding disputes under a diverse array of legislation. For instance, the
Queensland Civil and Administrative Tribunal (QCAT) was established under the
Queensland Civil and Administrative Tribunal Act 2009. QCAT determines several
matters that are grouped into three main jurisdictions: civil disputes, administrative
and disciplinary, and human rights.183 The Tribunal follows an inquisitorial
approach, with tribunal members appointed if they have over 6 years legal experience
and are experts in the relevant area of the QCAT jurisdiction. QCAT helps the parties
to settle their dispute through using a dispute resolution process such as mediation
and compulsory conciliation conferences.184 Most disputes are referred to mediation
prior to the Tribunal hearing a matter, in an attempt to settle the dispute at the earliest
and most cost-effective manner in a confidential process. 185

Jordan has not adopted these tribunals in their justice system. However, the
Tribunals of Religious Communities appear to operate in a similar manner. They do
not require a legal representative for parties, and they use mediation and conciliation
as a method to solve the disputes between the spouses. Also, the third party is not a

180
Garry Downes, 'Tribunals in Australia: Their Roles and Responsibilities' (2004) Australian
Law Reform Commission Journal 8.
181
Hazel Genn, 'Tribunals and Informal Justice' (1993) 56 Modern Law Review 393, 294.
182
Vines (n 5) 310.
183
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 11 ('Queensland Civil and
Administrative Tribunal Act ').
184
Frances Stewart, 'QCAT - A Different Experience: A Guide for Early Career Lawyers' (2017)
37(4) The Proctor 20-23.
185
Bobette Wolski, 'QCAT's Hybrid Hearing: The Best of Both Worlds or Compromised
Mediation?' (2013) 22(3) Journal of Judicial Administration 154-167.

76
 judge, but can be one of the members of a community with religious authority in that
community.

3.4 Cultural Considerations

Before closing this chapter, a contextually comparative situation of both

countries would not be complete without also understanding the cultural differences
between Australians and Jordanians, particularly as is relevant to their approaches to
conflict and communication. Busch comments that cultures can affect the conflict
forms and manifestations and its resolution process.186 The culture also can influence
the way people communicate, and this will influence the mediation practice in each
culture.187 This section will address the broad aspects of cross-cultural
communication in order to have an appreciation that culture can effect mediation
processes. This requires addressing the interpretive reality of the Australian and
Jordanian communities in terms of how individuals construct meanings, context,
identity , and communication when involved in disputes.

Several scholars have attempted to clarify the concept of culture to determine

the importance of differentiating between several cultures for research and other
purposes. Hofstede,188 as a pioneer in studying cultural considerations, defines
culture as ‘the collective programming of the mind that distinguishes the members
of one group or category of people from another.’189 Avruch190 defines culture as a
cumulative experience of a particular social group that is created and learned by the
society's members themselves and passed unto the next generation.191 He also adds
that this experience is crystallized by several factors such as class, occupation,

186
Dominic Busch, 'Does Conflict Mediation Research Keep Track with Cultural Theory? A
Theory-Based Qualitative Content Analysis on Concepts of Culture in Conflict Management
Research' (2016) 4(2) European Journal of Applied Linguistics 181-206.
187
Stella Ting-Toomey, 'Applying Dimensional Values in Understanding Intercultural
Communication' (2010) 77(2) Communication Monographs 169-180; Michelle LeBaron,
'Culture and Conflict’ Beyond Intractability' in Guy Burgess and Heidi Burgess (eds), Conflict
Consortium (University of Colorado, 2003).
188
Geert Hofstede, Culture's Consequences: Comparing Values, Behaviors, Institutions, and
Organizations Across Nations (Sage Publications, 2nd ed, 2001) 9.
189
Ibid.
190
Kevin Avruch, Culture & Conflict Resolution (US Institute of Peace Press, 5th ed, 2006) 5.
191
Ibid.

77
 profession, religion, or region.192 In other words, each culture has unique features,
which are particular to a specific nation or region, and which distinguishes it from
others. However, it is also important to note that much of human nature is common
across cultures. Cultural features influence attitudes, behaviors, and communication
styles of the society's members. Therefore, it is useful to consider any cultural
differences between Australia and Jordan as two different countries, particularly
when addressing communication characteristics in disputes.

When considering differences between cultures, researchers such as Fletcher193

suggest that understanding the cultural differences between two different countries
provides a framework for interpreting the goals and behaviours of others in the
mediation process.194 There are a variety of theories that scholars use to explain and
analyse cultural differences between societies, and their implications on cross-
cultural communication. Kittler195 confirms that ‘cultures can be characterized
according to their communication styles by referring to the degree of non-verbal
context used in communication.’196 This addresses the differences between cultures
by exploring the way people receive and understand communicated messages, taking
account of the whole interaction, including non-verbal elements.

This thesis has adopted two theories to differentiate between the Australian and
Jordanian culture. These are Hall’s communication style and Hofstede’s cultural
dimensions. Hall’s197 communication style is used to determine how people from
different cultures use the context and information to create meaning in their
communication.198 Hofstede’s dimensions, constructs a framework that determines
the differences and common features for each society, such as how the family
operates, the hierarchical structures, the communication used, and so on. This makes
his work especially useful when applied to the Australian and Jordanian cultures

192
Ibid.
193
Louise Fletcher, Mara Olekalns and Helen De Cieri, 'Cultural Differences in Conflict
Resolution: Individualism and Collectivism in the Asia-Pacific Region' Working Paper No 2,
The University of Melbourne, 1998, 1.
194
Ibid.
195
Markus G Kittler, David Rygl and Alex Mackinnon, 'Special Review Article: Beyond Culture
or Beyond Control? Reviewing the Use of Hall’s High-/Low-Context Concept' (2011) 11(1)
International Journal of Cross Cultural Management 63-82, 65.
196
Ibid.
197
Edward Hall, Beyond Culture (Anchor Books, 1976).
198
Ibid

78
 because it helps in understanding the way Australians and Jordanians negotiate to
resolve their disputes. This will be explored in greater detail in chapters 4 and 5. The
next section will provide an outline of these concepts and how they may apply to
Jordon and Australia, recognising that Australia is a multicultural country and Jordan
is more homogenous, but also has different religious groups.

3.4.1 High Context and Low Context Cultures

Communication style is defined as the way in which people express

themselves.199 Hall 200
classified ways of using language and context in
communication in different cultures into two different styles: Low Context
Communication (LCC) and High Context Communication (HCC).201 This
classification aims to understand differences in communication style between
different ethnic cultural groups. In low context communication (LCC), the
communication is transmitted directly or in an explicit code.202 Dsilva and Whyte 203
clarify that the people from this type of culture ‘convey meaning through words, so
that meaning resides in the message, with few inferences to be drawn from the
context.’204 Thus, the people from a low context culture convey meanings through
direct communication forms, such as in Westernised cultures like Australia. By
contrast, high context communication (HCC) occurs when people communicate
implicitly or by code.205 Cohen206 adds that the people from a ‘high-context culture
communicate allusively rather than directly.’207 Such cultures tend to be represented
by the Arabic culture, and Asian peoples. The difference is that LCCs prefer to get
all the information clearly expressed in order to be able to solve a problem, while an

199
Shoji Nishimura, Anne Nevgi and Seppo Tella, 'Communication Style and Cultural Features in
High/Low Context Communication Cultures: A Case Study of Finland, Japan And India'
(2008) 8 Teoksessa A. Kallioniemi 783-796, 786.
200
Hall (n 197) 1.
201
Ibid.
202
Ibid
203
Margaret Whyte and Lisa Dsilva, 'Cultural Differences in Conflict Styles: Vietnamese
Refugees And Established Residents' (1998) 9(1) Howard Journal of Communication 57-68,
60.
204
Ibid.
205
Jianeng Wang, 'A Cross-cultural Study of Daily Communication between Chinese and
American from the Perspective of High Context and Low Context' (2008) 4(10) Asian Social
Science Journal 151.
206
Raymond Cohen, Negotiating Across Cultures: International Communication in an
Interdependent World (United States Institute for Peace Press, 2007) 31.
207
Ibid.

79
 HCC will gather information by less direct means and will consider the context
important. Table 1 provides the characteristic differences between LCC and HCCs.

Table 2: Differences between low-context and high-context cultural communication.208

LOW CONTEXT HIGH CONTEXT

Direct and confrontational Indirect and non-confrontational

Explicit in communication Implicit in communication

Verbal based Context based (more non-verbal)

Speaker oriented style Listener oriented style

Focus on problem at hand Focus on history

People say what they mean and mean People are indirect, so more
what they say information must be gained by the
context

By observing these characteristics, it appears that generally Australia and Jordan

can be identified as having different communication styles. Jordan is largely HCC,
as an Arab Muslim country, which is characterised by the closeness of familial
relationships, a well-structured social hierarchy, and strong community and family
traditions. As a result of their relationships, they assume each knows the background
information they need to communicate, which therefore does not need to be made
explicit.209 The Arabic language is the official language in Jordan, and each word in
this language has diverse connotations, so the listener must be capable of determining
the precise meaning of a given word from the context of speech.210 According to Hall,
211
the received messages are ambiguous in this culture, and interpreting these

208
Anas Alabbadi, Culture in International Negotiation: The Jordanian-Israeli Peace Negotiation
(Beyrouni for Publishing and Distributing, 2015) 18.
209
Ibid, 16.
210
See, e.g., Hassan Ajami, 'Arabic Language, Culture, and Communication' (2016) 4(1)
International Journal of Linguistics and Communication 120-123.
211
Hall, (n 197) 91.

80
 messages correctly requires awareness of the overall situation, which also assumes
background knowledge.212 Thus, information is not necessarily contained in words,
and the listener must ‘read information’ between the lines.

As an HCC Jordanian’s communication style, when trying to solve disputes, is

likely to be focused on the future relationship outcomes. Cohen213 observes that HCC
cultures:

decline to view the immediate issue in isolation; lays particular stress on

long-term and affective aspects of the relationship between the parties; is
preoccupied with considerations of symbolism, status, and face; and draws
on highly developed communication strategies for evading
confrontation.214

People from this type of culture prefer to avoid disputes to save face, their honour
and reputation, from humiliation in front of their community. This culture sees
disputes as intractable215 and dangerous and as something to be avoided because it
brings destruction and disorder to the community.216 In the mediation setting,
Jordanian people prefer to ‘provide hints rather than direct messages especially if the
topic is sensitive. Such a style is basically rooted in the norm of avoiding
confrontation to save face and avoid conflict.’217 When they try to solve a dispute,
Jordanians will use indirect communication and offer tactful hints in a critical
situation to avoid embarrassing someone.218 This means that Jordanians may avoid
expressing their opinion on sensitive matters in disputes because sometimes this
expression is likely to impact on the progress of solving the dispute negatively. Also,
keeping promises in this culture is highly significant and plays a vital role in ensuring
solving the matters between the disputants. Nydell219 states that ‘an oral promise has

212
Ibid
213
Cohen (n 206) 216.
214
Ibid.
215
George E Irani, 'Islamic mediation techniques for Middle East conflicts' (1999) 3(2) Middle
East 2.
216
Mohammed Abu‐Nimer, 'Conflict Resolution in an Islamic Context: Some Conceptual
Questions' (1996) 21(1) Peace & Change 22-40.
217
Alabbadi (n 208) 85.
218
Margaret Nydell, Understanding Arabs: A Guide for Modern Times (Nicholas Brealey
Publishing, 4th ed, 2006) 58.
219
Ibid 18.

81
 its own value as a response’ more so than actions in this kind of culture.220 Jordanians
believe that if someone fails to keep their word, this is a shameful position.221 Arabic
or HCC people are more likely to focus on the emotional aspects.222 They will use
shuttle diplomacy as a quiet and confidential strategy to prevent escalation in the
dispute. One would expect this is conducive to using confidential mediation and this
investigated further as part of a discussion of the Jordanian culture in the next chapter.

When dealing with Australia, it is generally considered a LCC, but this must be
factored with it being less homogeneous than the Arabic HCC, because Australians
tend to ‘classify interpersonal contacts.’223 LCC people need detailed background
information when they interact with others.224 LCC focuses on the individual’s
interests, positions, needs, and desires.225 People with this communication propensity
are more likely to focus on the facts instead of emotions.226 They prefer to receive
explicit verbal content and do not want to have to imply other information into the
message in order to understand it. As the familial or community connections are not
so entrenched, they rely on verbal communication as their main information
channel.227 Given these features, and while acknowledging the multicultural aspects
of Australia, it can generally be inferred that Australians prefer using explicit
messages with less emphasis on implicit messages, and with more talking than
listening.

Australia as an LCC culture is strongly influenced by Anglo-Saxon legal

habits,228 which include focusing on finding solutions through ‘isolating the people
from the problem, and the maximisation of joint gains.'229 Disputes are considered as
natural and solvable in this culture,230 and can bring growth for the parties’

220
Ibid.
221
Alabbadi (n 208) 85.
222
John Barkai, 'What's a Cross-Cultural Mediator to do? A Low-Context Solution for a High-
Context Problem' (2008) 10 Cardozo Journal of Conflict Resolution 43-89, 61.
223
Liu Qingxue, 'Understanding different cultural patterns or orientations between East and West'
(2003) 9 Investigationes Linguisticae 22-30, 23.
224
Ibid.
225
Ronald L. Gardner and William Barcella, 'Challenging Cross-Cultural Notions of Perceptions
of Interstate Conflict Resolution between Arab/Muslims and Westerners' ( 2015) 3(1) Journal
of Global Peace and Conflict 1-21, 2.
226
Barkai (n 222) 61.
227
Qingxue (n 223) 23.
228
Cohen (n 206) 216.
229
Ibid.
230
Irani (n 215) 2.

82
 relationships; facing the dispute is therefore a recommended strategy.231 In summary,
because of their LCC communication style, Australians tend to be more direct and
this can be seen as confrontational when solving problems, as they look to solutions
in terms of material gains.

In the mediation setting, Australians prefer to provide the other party with the
information that they need, and the possibility of asking clarifying questions, even
questions that may seem personal or offensive in an HCC culture. O’Connell232 has
stated that Australian mediators prefer unambiguous verbal explanation because they
appreciate ‘the honesty, colourful statements and shifts in the subject as part of
conflict resolution, rather than the smooth and patterned expressions…’233 Thus, the
mediator has to be clear when they direct the disputants and say precisely what is
meant in order to be understood.

The concept of high and low context communication can be applied in unity with
Hofstede’s dimensions to refine the understanding of cultural requirements and the
impact of styles of communication when addressing disputes. 234

3.4.2 Hofstede’s Dimensions of National Cultures

In any comparative study that examines dispute resolution processes, cross-

cultural difference must be accommodated. The empirical studies of cultural
anthropologist Geert Hofstede endeavoured to collect data from seventy-four
countries to situate relevant cross-cultural theories about cultural differences, and
they offer a window for looking at these differences in mediation. Hofstede provided
a classification matrix for cultural differences based on five primary dimensions:
individualism-collectivism, power-distance, uncertainty-avoidance, masculinity-

231
Abu‐Nimer (n 216) 22.
232
Sean O’Connell, 'Strategies of Communication: Intercultural Workplace Communication
between an Australian Expatriate and Japanese Co-Workers in Japan' The University of
Queensland, 2011) 37.
233
Ibid.
234
See, e.g., Dorcas Quek Anderson and Diana Knight, 'Managing the Inter-Cultural Dimensions
of a Mediation Effectively : A Proposed Pre-Mediation Intake Instrument' (2017) 28(2)
Australasian Dispute Resolution Journal 89-97.

83
 femininity,235 and long-term-short-term orientation.236 These dimensions have
emerged as a key construct in determining differences between the underlying norms
and rules in both Western and Eastern cultures.237

Before discussing these dimensions to determine the fundamental differences

between the Australian and Jordanian cultures, it is essential to note that Hofstede
provided data on the Arabic culture from six Arab countries, including Egypt, Iraq,
Kuwait, Lebanon, Libya, and Saudi Arabia. As can be seen, Jordan was not one of
these countries. However, Hofstede generalised the previous findings obtained to all
Arab countries including Jordan.238 This data can be valid for Jordan because its roots
are deeply connected in Arab and Middle Eastern history and culture. Besides, it is
confirmed that four of the six countries, Iraq, Saudi Arabia, Egypt, and Lebanon, are
relatively similar to the Jordanian culture.239 However, several Jordanian researchers
have challenged some of Hofstede’s claims when considering Jordanian culture.240 It
is found that generalising Hofstede’s cultural values across all Arab countries is
impossible because differences exist between them.241 For instance, Jordanian
lifestyle has changed through the years, with a modern culture that is influenced by
the high rate of education and jobs.242 Thus, the theories that are used to determine
the cultural differences between communities can differ significantly from the actual
reality. 243 This can yield a multilayered picture of the communication ideals in the
same community and the actual communication practices between individuals within

235
Geert Hofstede, Culture's Consequences, International Differences in Work-Related Values
(Sage Publications, 1980) 5.
236
Geert Hofstede, 'Dimensionalizing Cultures: The Hofstede Model in Context' (2011) 2(1)
Online Readings in Psychology and Culture, 2.
237
Deborah Cai and Edward Fink, 'Conflict Style Differences between Individualists and
Collectivists' (2002) 69(1) Communication Monographs 67-87, 70.
238
Hofstede, (n 235) 5.
239
Alabbadi (n 208) 74.
240
Bader Obeidat et al, 'Toward Better Understanding for Arabian Culture: Implications Based on
Hofstede’s Cultural Model' (2012) 28(4) European Journal of Social Sciences 512-522, 515;
Mahmud Alkailani, Islam Azzam and Abdel Baset Athamneh, 'Replicating Hofstede in Jordan:
Ungeneralized, Reevaluating the Jordanian Culture' (2012) 5(4) International Business
Research 71, 77.
241
Obeidat et al (n 240) 517.
242
Alkailani, Azzam and Athamneh (n 240) 77.
243
Ting-Toomey (n 187) 176.

84
 the same community.244 Thus, these differences can only ever be generalised and
must always be considered with caution when it comes to individuals in dispute. 245

Several scholars have provided various definitions for each dimension, but they
are broadly individualism-collectivism, which is a dimension that measures the
relationship between the individual and the group in the society.246 Some cultures
have a high rate on the individualism scale, which means they will focus on the
individual’s needs and rights only.247 Other cultures have a high rate on the
collectivism scale, which means they will focus on group needs and rights rather than
the individual.248 The power distance-dimension addresses how people from different
societies deal with inherent inequalities that may result from status, power and
wealth.249 Thus, this dimension aims to describe people from different cultures
according to their acceptance of distributed power. As Lee declares,

cultures with high power distance tend to be comfortable with

hierarchical structures and clear authority figures. Cultures with low power
distance tend to be comfortable with flat organisational structures and shared
authority.250

The third dimension is uncertainty-avoidance, which focuses on whether

ambiguity and uncertainty are tolerated.251 Some societies who have a high rate of
uncertainty avoidance, will focus on following the rules, regulations and controls to
minimise the amount of uncertainty. By contrast, other cultures with low rates of
uncertainty avoidance will deal with fewer rules, and these cultures will deal more
efficiently with change and taking risks.252 The masculinity-femininity dimension
focuses on how features of masculinity or femininity are reinforced in different
societies.253 If a particular culture is characterised as masculine, it means that this

244
Ibid
245
Busch (n 186) 203.
246
Fletcher, Olekalns and De Cieri (n 193) 3.
247
Hofstede, (n 235) 209.
248
Ibid.
249
Hofstede, (n 236) 8.
250
Joel Lee, 'Culture and its Importance in Mediation' (2016) 16 Pepperdine Dispute Resolution
Law Journal 321.
251
Hofstede, (n 236) 8.
252
Marina Dabić, Darko Tipurić and Najla Podrug, 'Cultural differences affecting decision-
making style: a comparative study between four countries' (2015) 16(2) Journal of Business
Economics and Management 275-289, 277.
253
Hofstede, (n 234) 5.

85
 culture reinforces control with a high degree of gender differentiation. If another
culture is described as feminine, it means that this culture reinforces co-operation
between both genders.254 The long-term/short-term orientation focuses on the degree
by which each society is looking forward to the long-term objectives in solving their
disputes.255 When a particular culture rates high in this dimension, it means that this
culture 'cultivates respect for tradition and looks towards future rewards.'256 If
another culture rates low on this scale it means that this culture, 'looks towards
immediate results and is more amenable to change.'257

Based on the previous segment, we can draw certain inferences in relation to the
Australian and Jordanian cultural dimensions. The cultures of Western countries,
such as Australia, are typically considered individualist.258 Barkai states that
‘individualistic cultures value self-sufficiency, personal time, freedom, challenge,
extrinsic motivators such as material rewards, honesty, talking things out, privacy,
and individual rights.’259 In this culture, the individual interest and need is more
valued than the needs of the group because ‘individuals are supposed to take care of
themselves and those immediately connected with them.’260 In other words, the ties
between individuals are relaxed, everyone is expected to look after themselves or at
most only their immediate family, and they have less regard for persons beyond this
immediate circle.261

By contrast, people from Jordan are often associated with collectivist cultures,262
because most of the Jordanian people belong to tribes where relationships are strong
in terms of everyone taking responsibility for helping each other.263 Barkai states that

254
Lee (n 250) 322.
255
Geert Hofstede and Michael Harris Bond, 'Confucius and Economic Growth: New Trends in
Culture's Consequences' (1988) 16(4) Organizational Dynamics 4-21, 6.
256
Lee (n 250) 322.
257
Ibid.
258
Mae-Li Allison and Tara M. Emmers-Sommer, 'Beyond Individualism-Collectivism and
Conflict Style: Considering Acculturation and Media Use' (Pt Routledge) (2011) 40(2) Journal
of Intercultural Communication Research 135-152.
259
Barkai (n 222) 68.
260
Whyte and Dsilva (n 203) 59.
261
Harry Triandis, 'Individualism‐Collectivism and Personality' (2001) 69(6) Journal of
Personality 907-924, 909.
262
Allison and Emmers-Sommer (n 253) 138; Harry Triandis et al, 'Individualism and
Collectivism: Cross-Cultural Perspectives on Self-Ingroup Relationships' (1988) 54(2) Journal
of Personality and Social Psychology 323.
263
Alabbadi (n 208) 74.

86
 collectivists ‘value harmony more than honesty, and they work to maintain face.
They place collective interests over the rights of individuals, and their governments
may invade private life and regulate opinions.’264 In other words, collectivism tends
to be more concerned with the group’s needs, goals, and interests than with
individualistic-oriented interests.265 People from birth onwards are integrated into
strong, cohesive extended families, and they often continue to protect themselves as
a result of their affiliation to each other.266

Another important comparison is self-respect in individualistic cultures, which

is similar to face saving in collectivist cultures, but it applies only to the individual.267
Nydell268 confirms that the individual’s ‘honor, and reputation are of paramount
importance, and no effort should be spared to protect them.’269 In collectivist cultures,
face saving means the honour and reputation of the person as well as the whole
community. Alabbadi270 indicates that Jordanians believe their moral reputation or
face is of more value than material possessions, reflecting its collectivist nature.271
Thus, losing face is a severe issue in this culture. This is elaborated on in the next
chapter.

In the power-distance dimension, Australia is considered as having low power

distance, as individuals try their best to maintain equality in the distribution of
power.272 This means that equality is important in this culture because all people are
created equal and must be treated that way.273 People from this culture prefer
consultative methods to reach their decisions, as they prefer communicating to solve
their issues without expecting any guidance from a third party.274 Jordanian culture

264
Barkai (n 222) 68.
265
Alkailani, Azzam and Athamneh (n 240) 77.
266
Michael Minkov et al, 'A Revision of Hofstede’s Individualism-Collectivism Dimension: A
New National Index from a 56-Country Study' (2017) 24(3) Cross Cultural & Strategic
Management 386-404, 389.
267
Geert Hofstede, Gert Jan Hofstede and Michael Minkov, Cultures and Organizations :
Software of the Mind, Third Edition (McGraw-Hill, 3rd ed, 2010) 110.
268
Nydell (n 218) 58.
269
Ibid.
270
Alabbadi (n 208) 74.
271
Ibid.
272
Geert Hofstede, ' National Differences in Communication Styles ' in Dorota Brzozowska and
Wtadystaw Chtopicki (eds), Culture's Software: Communication Styles (Cambridge Scholars
Publishing, 2015) 1.
273
Barkai (n 222) 65.
274
See, e.g., Quek Anderson and Knight (n 234) 89-97.

87
 scores high in power distance dimensions because Jordanians accept hierarchical
orders and respect the authority of their superiors.275 This culture shows respect and
deference towards elders and other high status people in the community, especially
in the negotiation process.276 When they choose a high-status person as the third
party in the mediation process, Jordanians will consider this person as a leading
figure in this process, and they expect guidance from them to solve the generated
issues.277 However, Alkailani, Azzam and Athamneh278 examined the power distance
dimension in Jordan, and their findings indicate that Jordanian culture may now be
low in terms of the power distance dimension.279 This has changed because of
modern life in Jordan, and most people are now highly educated with good jobs.280
As a result, Jordanian people may be more inclined to consider the decision-making
process should be participatory and consultative between stakeholders, and the leader
to be feeding into the cooperative philosophy of mediation.

The third dimension is uncertainty-avoidance, which determines ‘how the

society deals with the ambiguity and the uncertainty of the future, and how it manages
to develop norms and institutions to deal with the unknown.’281 According to
Hofstede’s classification, the Arabic culture is slightly higher in risk avoidance than
the Australian culture because Arab people will decide based on their religion and its
traditions as the primary source of truth that must be obeyed and not broken.282 Thus,
people from this type of culture will not risk breaking the rules because of the worry
of losing face in front of the community.

Jordanian culture could also be considered as a high-risk avoidance culture

because it has a strong tribal traditional system that is strictly followed by its people,
and Jordanians prefer to avoid conflicts that might threaten the harmony of the group
in the future. However, Alabbadi283 states that Jordanian culture may contradict some

275
Safa Al-Sarayrah et al, 'The Effect of Culture on Strategic Human Resource Management
Practices: A Theoretical Perspective' (2016) 7(4) International Journal of Business
Management and Economic Research 704-716, 709.
276
Barkai (n 222) 65.
277
Quek Anderson and Knight (n 234) 95.
278
Alkailani, Azzam and Athamneh (n 240) 77.
279
Ibid.
280
Ibid.
281
Alabbadi (n 208) 74.
282
Obeidat et al (n 240) 515.
283
Alabbadi (n 208) 83.

88
 characteristics of the high uncertainty avoidance cultures for two reasons: ‘time and
schedules are the least of concerns for Jordanians ... [and] Jordanians enjoy
friendships with foreigners.’284 People from this dimension tend to be uncomfortable
with strangers and have a significant commitment to precision and punctuality,285 but
Jordanians are well known for their hospitality with foreign guests and for having
less interest in time. Whether Jordanians can be considered as high-risk avoidance
people is therefore contested.

On the other hand, the Australian culture rates as a low risk avoidance culture.286
This means that Australians may show respect for people who have different opinions
and are less rule-oriented. Regarding religion, ‘they are empiricist, relativist and
allow different currents to flow side by side’.287 People from this culture are more
tolerant, less aggressive, unemotional and more comfortable with taking risks that
may reflect ambiguous future outcomes.288

The fourth dimension is masculinity-femininity. Some aspects of Jordanian

culture can be seen as moderately feminine because men and women are meant to be
modest and caring for relationships,.289 However, Jordanian culture can be seen as a
masculine culture because women are supposed to be subordinate to male
leadership,290 However, and men are more privileged in areas such as wealth creation
and job hierarchy than women.291 Australia is considered as masculine because
Australians reinforce traditional male values such as achievement, competition,
assertiveness and material success.292 In the DR world, masculine cultures adopt a
competitive style that allows the stronger person to win, while feminine cultures

284
Ibid.
285
Nydell (n 218) 170.
286
Hofstede, (n 236) 11.
287
Ibid.
288
Jenny Rapp, Richard Bernardi and Susan Bosco, 'Examining the use of Hofstede’s uncertainty
avoidance construct in international research: A 25-year review' (2010) 4(1) International
Business Research 3-15, 3.
289
Hofstede, (n 234) 297.
290
Barkai (n 222) 72.
291
Majd Rayyan, 'Jordanian Women's Leadership Styles in the Lens of their Masculinity-
Femininity Value Orientation' (2016) 21(3) Journal of Transnational Management 142-161.
292
Hofstede, (n 235) 13.

89
 adopt a cooperative style that allows both parties to win and this fits a mediation
ethos.293

Finally, in long-term-short-term orientation, Jordanian culture could be

classified as a long-term orientation culture,294 because people have a great respect
for traditions, loyalty to social obligations, and they have a concern for saving face
and self-respect.295 Hofstede’s study also found that Australia could be considered a
short-term oriented country,296 as the culture concentrates on short-term results and
having concerns about self-respect.297

This discussion indicates broadly that while some factors may overlap, Australia
is essentially identified as an LCC with dimensions such as individualism,
masculinity, low power distance, low risk avoidance and short-term orientation.
Jordan, on the other hand, is an HCC with dimensions such as collectivism,
femininity, low power distance, high-risk avoidance and a long-term orientation. The
differences are significant for mediation practice and communication techniques
used in mediation, as the different cultures will tackle disputes in alternate ways. The
religion of Islam and Arab culture bring Jordanians together as one collective society,
while the Australian culture encourages putting the individual's needs and interest as
a priority over the community. The Jordanian culture believes that disputes are best
avoided, and subtlety is used in communication to save face as a priority. In contrast,
Australian culture believes that disputes, while not necessarily pleasant, are normal,
and communication is informal and direct and to the point. Australia, as an
individualistic society, will tend to focus on the main issue, and is masculine and goal
oriented. Jordan, as a collectivist culture, will be more feminine in focusing on the
relationships of the disputants, making it more tradition and rule-oriented.

This is important to consider for communication styles and mediation models in

resolving disputes in both cultures. Jordan, as a collectivist culture will aim to solve
disputes through consensus because they appreciate strength and harmony and quiet
diplomacy. By contrast, Australia, as an individualistic society, views individuals as

293
Barkai (n 222) 74.
294
Al-Sarayrah et al (n 275) 709.
295
Alkailani, Azzam and Athamneh (n 240) 74.
296
Hofstede, (n 236) 14.
297
See, Tony Fang, 'A Critique of Hofstede’s Fifth National Culture Dimension' (2003) 3(3)
International Journal of Cross Cultural Management 347-368.

90
 important and aims to ensure their disputes are resolved to their satisfaction.
Jordanians tend to be less confrontational as they select their words carefully to avoid
insulting others, while Australians tend to be direct and straightforward in sharing
their opinions. This makes decision-making markedly different, and it is therefore
relevant to the mediation process. In the Jordanian culture, decision-making is group-
oriented, whereas in Australia the individual will make decisions.

3.5 Summary
This chapter has provided an overview and a comparison between the legal
systems of Australia and Jordan. This comparison has shown that both have
influences from the common law and civil law traditions. As two different legal
systems, they are useful to compare, as they have surprisingly many factors in
common. Australia and Jordan, like many countries, have Indigenous inhabitants
from before colonization on whom a foreign legal system has been imposed. Also,
the British legal traditions have influenced both legal systems to varying degrees.
Their experience mean both exhibit legal pluralism, with the same legal system
having multiple sources of law such as traditional law, religious law, code law, judge-
made law and legislative law.

The commonality in the legal systems include that both have a constitutional
monarchy with a hereditary monarchy. Both accommodate the vital role of the
separation of powers doctrine to secure democracy and justice in their society, both
follow the Westminster system of a more two-way separation with the legislature and
executive on one side and the judiciary on the other. The difference between
Australia and Jordan is mostly in the use of the adversarial and inquisitorial systems,
as they are respectively a common law and a civil law country. Thus, in Australia,
the importance of judge-made law is a factor of difference. In Jordan, courts can
apply only the written laws and codes in their decision making, and where there are
no written rules, the judge can apply Sharia principles, natural justice principles,
customs, and precedents respectively.

Hall’s communication style and Hofstede’s cultural dimensions have been

adopted in this study to better understand the Australian and Jordanian culture. Both
theories help enhance understanding about the nature of decision-making processes in

91
these cultures. This is relevant to a consideration of how disputes are approached and
managed and to the styles of mediation adopted in the two countries.

This chapter has set the frame of comparison between the legal and cultural
systems in order to understand fully how mediation fits within the frame. This provides
a basis from which to consider just how the mediation process operates in both
countries. The next chapter further explores mediation in Jordan as a concept and
practice, influenced by specific attributes of Jordanian society such as the Bedouin and
Islamic influences.

92
 Chapter 4: The Jordanian Framework

4.0 Introduction to Jordan

This chapter provides a detailed understanding of the mediation background and

context in Jordan. Building on the introduction of cultural considerations in the last
chapter, this chapter expands on cultural contexts and provides a focus on Jordanian
culture in order to understand the Jordanian people’s way of communication and
responding to disputes, which needs to be considered when using mediation.
Jordanian dispute resolution processes are considered in three different areas. It starts
with consideration of the Indigenous Bedouin culture and a description of
‘mediation,’ as practised by the Bedouin. This section describes the Bedouin
mediation practice because it runs as a fundamental stream underlying the Jordanian
culture and still infiltrates and influences the society through encouraging Jordanians
to solve their disputed matters before resorting to the court. An overview of concepts,
norms, and practices in Islamic dispute resolution are addressed next as Jordan is an
Islamic country that is eager to follow the teachings of Islam primarily that relate to
encouraging solving disputes between people peacefully. Finally, after considering
some of the key influences such as these the Chapter will outline the legal system’s
current adoption of mediation as a dispute management system within the modern
legal framework. This provides a broad contextualised understanding of how
mediation is perceived and has been implemented within the Jordanian community.
This will help to provide a contextual picture about the factors that play an important
role in shaping the Jordanian mediation as it is currently

4.1 Mediation in Bedouin culture

The traditional tribes inhabited the Jordanian desert land for a long time. ‘Tribe’
is seen as acceptable terminology that encapsulates the sense of belonging to a
kinship group.1 Every Jordanian Muslim or Orthodox Christian citizen belongs to a

1
See e.g., Robert J Gregory, 'Tribes and tribal: Origin, Use, and Future of the Concept' (2003)
1(1) Studies of Tribes and Tribals 1-5.

93
 tribe, even the Royal Family, who are believed to have descended from the Prophet
Muhammad, who himself came from the Hashemite clan of the tribe of the Quraysh.2
There are two types of tribes in Jordan: the Semi-Nomadic tribes who move only
twice a year and within a limited area, and the fully nomadic tribes who move
thousands of kilometers into the inner deserts. The latter are known as the Bedouin.3
In the last century, indigenous people in Jordan were encouraged to settle in towns
and villages by offering them a good education, services, and employment. Most of
Jordan’s people now live in a settled manner and do not live the nomadic lifestyle,
but they have an indigenous background, and they keep their customs and traditions,
which they pass on to the next generation. Bedouin existed in Jordan before its
modern State formation, and they remain prominent today.4 The population of
Bedouin in Jordan, according to Urban and Rural Estimates as of 2012, is
approximately 6,249,000.5

Bedouin is an Arabic word, which is derived from badawiyin, meaning the

people who live in the desert (Badia).6 The term Bedouin is defined broadly because
it covers all Arabic-speaking nomadic pastoralists, including those people who retain
a substantial part of their Bedouin culture.7 The Bedouin are the native people of the
land and can be likened in their relationship with the land to other indigenous peoples
colonised in settler states, such as the Indigenous people in Australia.8 Al-Serhan and
Furr9 describe the Bedouin tribe in Jordan as ‘a structure of extended families, a
patrilineal kinship structure of many generations that encompasses a wide network
of blood relations descended through the male line.’10 Bedouin beliefs infiltrate much

2
Ghazi Bin Muhammad, The Tribes of Jordan at the Beginning of the Twenty-First Century
(Jamʻīyat Turāth al-Urdun al-Bāqī, 1999) 9.
3
Ibid 12.
4
Nancy Allison Browning, 'I am Bedu: the Changing Bedouin in a Changing World' (Master
Thesis, University of Arkansas, 2013) 10.
5
Mohammad Husni Abumelhim, 'Women and Social Change in Jordanian Bedouin Society'
(2013) 4(4) Studies in Sociology of Science 27.
6
Muwafaq Al-Serhan and Ann Furr, 'Tribal Customary Law in Jordan' (2007) 4 South Carolina
Journal of International Law and Business 17, 3.
7
Frank Stewart, 'Customary Law among the Bedouin of the Middle East and North Africa' in
Dawn Chatty (ed), Nomadic Societies in the Middle East and North Africa (Brill, 2006) vol 81,
239, 240.
8
Steven Dinero, 'The Naqab Bedouins: A Century of Politics and Resistance by Mansour
Nasasra (review) ' (2017) 71(4) The Middle East Journal 2.
9
Al-Serhan and Furr (n 6) 3.
10
Ibid 21.

94
 of Jordan, as economic and political matters in the country are influenced by, or based
on, tribal networking.11

The tribe is the primary building block in the Jordanian indigenous community.
Each tribe member is not only traditionally committed by duties of mutual assistance
to her or his immediate relatives, but also to the tribe as a whole. Tribes are further
divided into clans and then into family groups (ha’mulah). Some clans can trace their
ancestry back ten generations.12 Each of these family groups consists of people who
share a direct blood connection, and as such, they are responsible for each other
regarding issues related to blood in marriage and in vengeance.13 Blood vengeance,
which is a deeply-rooted practice in Bedouin life, means taking revenge by killing
the killer, and this is seen as the victim’s family’s right and duty.14 The individual in
the tribe is expected to show respect towards older males in the tribe, as they are
patriarchal, and to show loyalty to the collective goals and interests of the tribe.

Each tribe has a male leader, who is chosen from one of the Nobel families in
the tribe, and he is called Al-Sheik. This leader holds the power to solve the tribe’s
problems and to maintain social harmony among his people.15 The leader’s age plays
an essential role in his credibility. An older leader is more respected and so has
greater power in resolving disputes.16 The leader adopts a dispute resolution process
to solve issues so as to maintain coherence between the individuals and also to
maintain his essential position.17 If disputes arise between the members of a tribe, he
will try to settle the dispute using amicable means, for example through a process
that is often referred to as mediation.

11
Aseel Al-Ramahi, 'Wasta in Jordan: A Distinct Feature of (and Benefit for) Middle Eastern
Society' (2008) 22(1) Arab Law Quarterly 35-62, 39.
12
Al-Serhan and Furr (n 6) 21.
13
Browning (n 4) 5-6.
14
Alean Al-Krenawi et al, 'Psychological Responses to Blood Vengeance among Arab
Adolescents' (2001) 25(4) Child Abuse and Neglect 457-472.
15
Al-Serhan and Furr (n 6) 18.
16
Mohammed Abu‐Nimer, 'Conflict Resolution in an Islamic Context: Some Conceptual
Questions' (1996) 21(1) Peace and Change 22-40, 31.
17
Bashar Malkawi, 'Using Alternative Dispute Resolution Methods to Resolve Intellectual
Property Disputes in Jordan' (2012) 43 California Western International Law Journal 141,
142.

95
 The next section provides a comprehensive image of the Bedouin dispute
resolution process. It addresses customary dispute resolutions hallmarks and the
elements used in these traditional approaches.

4.1.1 Customary Dispute Resolutions Hallmarks

Four main hallmarks rule the customary dispute resolution process: collective
responsibility, honour, confidentiality and neutrality. These hallmarks can not only
apply to people who are living nomadically but also to any person of strong tribal
persuasion who lives in cities or villages.

The first principle is a collective responsibility approach, which can be identified

as belonging to a high context culture (HCC) and according to Hofstede’s dimensions
can be attributed to a collective society.18 The people from these cultures are devoted
to relationship building, cooperation, trustworthiness, solidarity with others and
implicit communication.19 Collective responsibility is one of the fundamental
aspects of the tribal society and requires that every member of the tribe has to support
each other and take responsibility as a form of mutual obligation.20 Al Ramahi21
states that tribes place collective responsibility ‘as the highest principle in a hierarchy
of values in both dispute resolution and everyday dealings.’22 The Bedouin
community is a collective one, due to the harsh environment that it has had to face
and survive in with poor desert resources.23 This principle helps the tribe members
survive together and defend each other against thieving nomads, foreign enemies,

18
As discussed in chapter 3, 77.
19
See, Rebecca LeFebvre and Volker Franke, 'Culture Matters: Individualism vs. Collectivism in
Conflict Decision-Making' (2013) 3(1) Societies 128-146; Cem Tanova and Halil Nadiri, 'The
Role of Cultural Context in Direct Communication' (2010) 5(2) Baltic Journal of Management
185-196.
20
Aseel Al-Ramahi, 'Competing Rationalities: The Evolution of Arbitration in Commercial
Disputes in Modern Jordan' (PhD Thesis, London School of Economics and Political Science,
2008) 129.
21
Aseel Al-Ramahi, 'Sulh: A Crucial Part of Islamic Arbitration' (2008) London School of
Economics Legal Studies, 2.
22
Ibid.
23
Al-Serhan and Furr (n 6) 18.

96
 and desert conditions. Without unity, co-operation, and symbolic divisions of roles,
the survival of the tribe as a whole would be impossible.24

Collective responsibility has played a pivotal role in the management of various

types of disputes between individuals and between the tribes since long before the
establishment of the modern state.25 The absence of judicial authority in the Bedouin
community shows a system of justice heavily influenced by tribal solidarity and the
need to protect and sustain the tribe. This solidarity is reaffirmed in the face of
external disputes between tribes, which only increase the internal cohesion within the
group.26 Most studies focus on the dispute resolution processes in criminal disputes,
such as murder, due to their impact on community coherence, but this does not
prevent the use of these processes in civil disputes.

In the case of criminal actions, such as killing a person from another tribe, the
offender’s family and his tribe have a responsibility to participate in a tribal dispute
resolution process to settle the dispute immediately, and to prevent further revenge,
as the offender is seen as an agent, or extension of their tribe.27 The tribe of the
victim’s family supports the victim and their family to ensure they receive justice
from the other side. This occurs in two ways, either by conducting revenge in the
form of killing the killer or killing a high-status person from the killer's family, or by
encouraging the victim’s family to forgive and accept compensation. Compensation
is offered in the form of cash or livestock such as sheep and camels. This means that
responsibility is held collectively and there is a mutual obligation within both groups
to prevent the negative consequences of disputes from escalating, and thereby
contaminating the whole tribe. This hallmark remains an integral part of Jordanian
culture, as the tribe will support their member, whether they are an offender or a
victim.28 As a collective society, this influences the HCC type of communication
patterns that society follows.

24
Muhammad (n 2) 22.
25
Jessica Watkins, 'Seeking Justice: Tribal Dispute Resolution and Societal Transformation in
Jordan' (2014) 46(1) International Journal of Middle East Studies 31-49.
26
Sadik Kirazli, 'Conflict and Conflict Resolution in the Pre-Islamic Arab Society' (2011) 50(1)
Islamic Research Institute, 33.
27
Clinton Bailey, Bedouin Law from Sinai and the Negev: Justice without Government (Yale
University Press, 2014) 60; Al-Serhan and Furr (n 5) 21.
28
WANA Institute, 'Tribal Dispute Resolution and Women’s Access to Justice in Jordan' (2016)
WANA Institute.

97
 The second hallmark is the honour or reputation (Sharaf), which is central to
Bedouin culture. As noted, this hallmark can be identified as one of Hofstede’s
dimensions that is attributed to face saving, which means the honour and reputation
of the person as well as the whole community. Honour ensures enculturation with a
common moral code.29 According to Ozcelik,30 honour ‘is a flexible concept that can
be used to legitimise feud and revenge as well as forgiveness, reconciliation, and
mediation.’31 When a violation occurs, the victim has the right to restore their honour
in criminal matters through physical revenge as an honourable choice in dispute
situations.32 If the victim or their family do not do this, they become known as weak
in the Bedouin community, and so can be seen as vulnerable and easy victims,
particularly if living in the desert. Also, pressure applies to the offender’s tribe to
settle the dispute as any revenge may also result in loss of honour. As Pely33 states,
‘[t]hese consequences may seem trivial to a Western observer, but in a tribal culture,
honour and respect are central elements, so the threat of shame or lost honour can
provide considerable leverage.’34 In civil disputes such as financial issues, honour
may be impacted heavily. Especially when someone breaches their word or does not
do what they said they would in returning the money to the creditor, this will affect
the debtor’s honour in front of his community, as no one can trust him again.

An important aspect linked to honour is forgiveness. Forgiveness restores

honour when the offender’s family commences dispute resolution, as they can
preserve or even enhance their honour,35 by avoiding revenge and requesting the
victim’s family to forgive them through apology and acknowledgement of any wrong
done. The victim’s family likewise restores its reputation and enhances its power
through the act of forgiving. This hallmark demands that every individual in the
Bedouin tribe must be strong in protecting and maintaining their honour and stopping

29
Andrew Shryock, 'House Politics in Tribal Jordan: Reflections on Honor, Family and Nation in
the Hashemite Kingdom' (2000) Laboratory of Social Anthropology.
30
Sezai Ozelik, 'Islamic/Middle Eastern Conflict Resolution for Inter-personal and Intergroup
Conflicts: Wisata, Sulha and Third-Party' (2006) 3(12) Uluslararasi Iliskiler/International
Relations, 12.
31
Ibid.
32
Doron Pely, 'When Honor Trumps Basic Needs: The Role of Honor in Deadly Disputes Within
Israel's Arab Community' (2011) 27(2) Negotiation Journal 205-225, 212.
33
Doron Pely, 'Resolving Clan-Based Disputes using the Sulha, the Traditional Dispute
Resolution Process of the Middle East' (2008) 63(4) Dispute Resolution Journal 80, 86.
34
Ibid.
35
Pely, (n 32) 212.

98
 any violation through resolutely ensuring that every infraction on their rights is
rectified.36 These are potent hallmarks for mediation practitioners to understand, as
they can use them in the toolbox of mediation resources to help move the parties to
a resolution.

One cannot understand honour without addressing the significance of women.

The female capacity to reproduce makes her an essential component to the overall
survival of a tribe. Therefore, marriage and the sexual lives of females is a keen
concern in Bedouin societies.37 A Bedouin woman is highly appreciated and valued
as a member of the tribe because she not only secures the tribal lineage,38 but can
help maintain or establish an alliance with families of other tribes, which in turn can
reduce tribal disputes.39 Honour requires that women have a good reputation and
protect their virtue in order to keep the tribe strong.

For this reason, women are held to strict obedience as any shameful behaviour
weakens the power of their tribe. Consequently, any offence against a woman is also
of considerable significance and may lead to revenge by the collective male kin.
Sexual offending has a particularly dangerous potential to impact on the tribe’s
reputation and stability. Honour, as a hallmark, requires males to be responsible for
protecting a woman from violation and ensuring her sexual behaviour is controlled
and appropriate. If a man cannot ensure this, they will be seen as weak in Bedouin
society. According to Al-Serhan and Furr,40 ‘this principle is more important in
Bedouin life than life itself’.41 Thus, honour as a hallmark places equal but different
demands on males and females.42 Any act against honour is considered to be a serious
matter, which requires resolution for respectability to be restored in the community.43

36
Bailey (n 27) 17-18; See also, Mohammed Abu‐Nimer, 'Conflict Resolution Approaches:
Western and Middle Eastern Lessons and Possibilities' (1996) 55(1) American Journal of
Economics and Sociology 35-52, 48.
37
Manar Hasan, 'The Politics of Honor: Patriarchy, The State and the Murder of Women in the
Name of Family Honor' (2002) 21(1-2) The Journal of Israeli History 1-37, 6.
38
Philip Carl Salzman, 'The Middle East's Tribal DNA' (2008) 15(1) Middle East Quarterly 23,
28.
39
Sarab Abu-Rabia Queder, 'Permission to Rebel: Arab Bedouin Women's Changing Negotiation
Of Social Roles' (2007) 33(1) Feminist Studies 161-187, 164.
40
Al-Serhan and Furr (n 6) 29.
41
Ibid.
42
Hasan (n 37) 3.
43
Amira El Azhary Sonbol, Women of the Jordan: Islam, Labor, and the Law (Syracuse
University Press, 2003) 190.

99
 In civil matters, honour is an issue, for instance if breaching business dealings or
breaching one’s word to pay the price of a sale. The impact can be so severe that no
one will deal with such a person again. Therefore, dispute management is aimed at
restoring honour through addressing the stakeholder’s needs.

A third hallmark in Bedouin dispute management is confidentiality, which is

one of the vital hallmarks in the mediation dispute resolution process. This hallmark
ensures protection of the conversations, information, and evidence disclosed in the
delegation’s private sessions with the parties.44 However, this hallmark has an
interesting difference from confidentiality as understood in modern mediation
processes. In the Indigenous process, it is only applied to negative expression of
emotions in the private sessions. The delegation aims to protect harmony and the
public interest, which is not achieved if the other party hears about the negative
feelings, or emotions that are expressed during a dispute investigation. This may
complicate the issue instead of solving it.45 The confidentiality of the information
and the evidence collected in these sessions is not protected or guaranteed by the law.
46

The last hallmark feature is neutrality, which is one of the fundamental hallmarks
in all dispute management processes in Jordan.47 It emphasises the neutral status for
the intervener as a third party in this process.48 Neutral status here does not mean a
lack of familiarity or kinship but requires impartiality or non-biased participation by
the third-party intervener. They must not have any interest in the honour and respect
of one party over another, nor prefer any party over another during dispute
management.49 In the Jordanian Indigenous process, neutrality is essential because it
guarantees a smoothness in conducting this process. The neutrality is guaranteed
when the third party does not get money to participate in the process. If the disputants

44
John Arthur, 'Confidentiality and Privilege in Mediation' (2015) Australian Alternative Dispute
Resolution Law Bulletin 91.
45
Pely, (n 33) 86.
46
Ibid.
47
Hilary Astor, 'Rethinking Neutrality: A Theory to Inform Practice - Part 1' (2000) 11
Australian Dispute Resolution Journal 73.
48
Susan Douglas, 'Neutrality in Mediation: A Study of Mediator Perceptions' (2008) 8
Queensland University of Technology Law and Justice Journal 139.
49
Janet Rifkin, Jonathan Millen and Sara Cobb, 'Toward a New Discourse for Mediation: A
Critique of Neutrality' (1991) 9(2) Mediation Quarterly 151-164, 151.

100
 feel these interveners are unqualified or not neutral, it may prevent a satisfactory
outcome.

4.1.2 The Traditional Elements

Each of these processes for managing disputes includes a third party, who has
high community status and considerable power. The disputants will choose the third
party according to ‘kinship connections, political position, religious merit, previous
experience, and knowledge of customs and community.’50 The third party intervener
is vital in this process because they have to use their own power position as authority
to impose the process and the solution on the parties.51 In doing this, the third party
is conscious of the pressure from the community to be fair, unbiased, and peaceable.
Justice demands they ensure imposing an equitable solution to end the dispute as
quick as they can.52 The disputing parties are required to respect the third party, and
so they will try to maintain good relations with them. Unlike facilitative mediation,
the third party role in Bedouin processes is best seen as determinative, as the third-
party is directive, and also advisory in their encouragement of the parties to resolve
their dispute based on the concept of justice that is accepted in their societies.

The dispute management, while generally seen as a voluntary process in that it

requires the parties’ agreement to participate, is really a obligatory participation
imposed on the disputants by their community. The strong community-based society
and associated hallmarks ensure enculturation that encourages disputants to
participate in order to stop the potential cycle of revenge.53 Unlike the LCC of
Australia and other Westernised countries, where the individual holds greater
significance than the community, protecting the harmony of the community is a
priority in Jordan. Individual interests and personal gain are sacrificed for the general

50
Abu‐Nimer, (n 36) 48.
51
Mneesha Gellman and Mandi Vuinovich, 'From Sulha to Salaam: Connecting local knowledge
with international negotiations for lasting peace in Palestine/Israel' (2008) 26(2) Conflict
Resolution Quarterly 127-148, 136.
52
Brian Kritz, 'Palestinian Ṣulḥa and the Rule of Law' (2013) 27(2) Arab Law Quarterly 151-170,
155.
53
Doron Pely, 'Where East not Always Meets West: Comparing the Sulha Process to Western‐
Style Mediation and Arbitration' (2011) 28(4) Conflict Resolution Quarterly 427-440, 429.

101
 community goal, which is protecting social harmony and stability. Thus, addressing
disputes and undertaking a management process that is collaborative and confidential
would appear to be a natural priority choice in these communities.

The Bedouin approach in managing disputes is deeply communally oriented in

Jordan.54 The defendant may face both the public legal justice system and Indigenous
punishment. The final court decision may be affected by the Sulha verdict, and when
the victim or their family forgive the offender, the court may decide not to impose a
sentence.55 Likewise, in civil disputes, the court may take into consideration the
agreement that was reached in Sulha. These traditional dispute resolution processes
have a paramount status in the Jordanian laws because of their success in ending
disputes peacefully and quickly. Just how the Bedouin approach managing disputes
is explained next.

4.1.3 Bedouin Approaches to Dispute Management

There are several processes used by Bedouin for managing disputes in order to
maintain stability within and between tightly knit social groups. These approaches
are used in disputes that entail crimes such as killing. However, the same technique
may be used in civil disputes, including business and financial disputes.56 The
traditional approach consists of Jaha, Jalwa, Sulha and agreement, and they are each
described in turn.

54
George Irani and Nathan Funk, 'Rituals of Reconciliation: Arab-Islamic Perspectives' (1998)
Arab Studies Quarterly 53-73, 21.
55
The Penal Act 1960 (Jor) art 52 ('The Penal Act').
56
Kritz (n 52) 152.

102
Figure 6: The traditional Bedouin approach to all disputes57

Ceremony
agreement
Shuttle
negotiation
Mandatory
expulsion (if
Creating necessary)
Jaha
delegation

When a dispute arises, the first step is Jaha, which means creating a deputation
to help the disputants through negotiation to reach a peaceful settlement, employing
compensation or forgiveness.58 The primary purpose of the Jaha is not for
punishment or judgment. Jaha cannot be organised automatically after a dispute has
occurred, but rather needs several steps to be followed in order for it to occur. As
Pely59 states,

[t]he Jaha uses shuttle diplomacy to attempt to persuade each side to cease
hostilities for a while in order to allow [the shuttle] to hear witnesses,
consider evidence, and craft a reconciliation agreement between the
disputants.60

The Jaha delegation must be created and authorised from representatives of the
stakeholder parties, such as the plaintiff, defendant, or their family, in order to
successfully intervene to solve the problem.

Jaha starts when the stakeholder party seeks the help of a well-known,
responsible, esteemed man, usually from amongst the tribal elders or leaders
(shaykhs), religious authorities, or the Governor.61 The stakeholder party will visit
the Jaha members in their houses to convince them to participate in a process of
shuttle diplomacy. The stakeholder party will inform the Jaha members that they are
seeking reconciliation. Those members will participate in Jaha due to fear of scandal
or loss of respect if they refuse to join without any reasonable reason. When the

57
This model is constructed by the researcher after studying the Bedouin approach.
58
Nahla Yassine-Hamdan and Frederic Pearson, Arab Approaches to Conflict Resolution:
Mediation, Negotiation and Settlement of Political Disputes (Routledge, 2014) 7.
59
Pely, (n 33) 86.
60
Ibid.
61
Paul Salem, Conflict Resolution in the Arab World (American University of Beirut, 1997) 163.

103
 figures comprising those involved in the shuttle diplomacy respond by agreeing to
participate, they say ‘You requested that we intervene. We, as a Jaha, want to hear
your authorisation and to receive it in writing.’62 So, a stakeholder party has to give
the Jaha irrevocable written authorisation.63 This authorisation states that ‘I … accept
that my case will be in your hands and that it is now on your conscience, and I will
accept any ruling you issue in this case.’64 After that, the chosen third parties form a
delegation to intervene and attempt to solve the case. The delegation party
approaches the other party in the dispute to convince them to participate in this
process. The delegation will visit them in their home and inform them about the
authorisation and invite them to start the Jaha.65 The Jaha may say ‘we were sent
and are authorised as Jaha by … and we invite you to consider us.’66 The response
can be immediate or take a couple of days. However, if it takes too long to agree to
the Jaha, then this can be taken as disrespect by the other party. If the disputant
accepts then the delegation will request full permission to intervene and decide the
matter.67

Before starting the Sulha, the delegation party will examine the situation
between the parties to see if there is a need for Jalwa. Halasa68 defines Jalwa as a
form of mandatory expulsion. Jalwa has a dramatic consequence as it can require
from three to five generations of the offender’s family to relocate their home through
an agreement between tribal leaders and the state.69 This may happen when a
member of one tribe commits a severe crime against a member of another tribe that
has lived in the same area.70 This process results in dramatic upheaval in the
offender’s family life, because they need to change their employment,
accommodation, schooling, and their voting rights, as they change their electoral
district.71 Police are generally called in to supervise this process and it may be further
facilitated by Jordan’s administrative governors, under the Crime Prevention Act

62
Elias Jabbour, Sulha Palestinian Traditional Peacemaking Process (House of Hope, 1993) 31.
63
Pely, (n 33) 82.
64
Jabbour (n 62) 31.
65
Pely, (n 33) 83.
66
Jabbour (n 62) 32.
67
Pely, (n 33) 82.
68
Ayman Halasa, 'Jalwa in Jordan: Customary Law and Legal Reform', The Legal Agenda)
<http://legal-agenda.com/en/article.php?id=565&lang=en>.
69
Al-Serhan and Furr (n 6) 24.
70
Halasa (n 68) 1.
71
Ibid.

104
 1954.72 The tribe’s leaders may adopt this process as a consensus decision when the
degree of the crime’s seriousness calls for such a dramatic intervention. The period
of the Jalwa expulsion depends on the type of crime; for instance, in cases of murder,
the usual period is up to seven years until the wounds have healed. 73 This process is
a third party determinative process, as the third party makes a decision after
consideration of all the information they gather.

Once Jalwa has occurred, or a decision is made not to expel the offender’s
family, the Sulha process is conducted. Sulha is a customary justice process, dating
back to the pre-Islamic period.74 Pely75 describes this process as a unique way of
managing disputes, which uses a mix of local variants of mediation and arbitration
techniques to facilitate the settlement.76 This process is effective in managing
disputes between parties when they are from the same tribe. Lang 77 states that the
main purpose of Sulha is to ‘create an environment in which people feel emotionally
able to resume peaceful relations and continue living together in close quarters.’78
The process is one of negotiation, as used by the Jaha delegation, to guide the parties
to a peaceful dispute settlement. In the end, the delegation may impose their decision
on the parties to accept their final verdict. In this sense, it moves from an assisted
negotiation process to an arbitral or private decision-making process. The third party
are like arbitrators who derive their power from their status and their expert positions
in the community, as well as the fact that this process never operates without the
explicit authorisation of the disputants. 79

The Jaha delegation will start the Sulha process with a private intake or
discussion with disputants’ representatives, and any witnesses. The Jaha delegation
will ask any witnesses questions, much like the inquisitorial evidence gathering
process, to collect information about the dispute. During this stage, the third party
delegation avoids face-to-face negotiations between the disputing parties to ensure

72
The Crime Prevention Act 1954 (Jor) ('Crime Prevention Act ').
73
Al-Ramahi, (n 20) 149.
74
Aida Othman, 'An Amicable Settlement is Best’: Sulha and Dispute Resolution in Islamic Law'
(2007) 21 Arab Law Quarterly 64–90, 64.
75
Pely, (n 53) 80.
76
Ibid.
77
Sharon Lang, 'Sulha Peacemaking Process and the Politics of Persuasion' (2002) 31(3) Journal
of Palestine Studies 52–66, 62.
78
Ibid.
79
Pely, (n 33) 82.

105
 there is no risk of further escalation of the dispute. Pely80 states that the face-to-face
meeting has a negative impact on the process as the high anger levels between
disputing parties may degenerate into violence if they meet face-to-face.81 As a result,
a type of shuttle negotiation occurs, and the delegation uses reframing of the
disputants’ narratives when speaking to the other party to remove any inflammatory
or toxic language.82 Gellman and Vuinovich83 state that storytelling is the primary
communicative technique in Sulha, as it allows each party to communicate privately
with the third party delegation, to present their position and interests, while also
avoiding antagonism.84

Traditionally, the third parties will meet the disputants separately and engage in
reframing and detoxifying statements, by removing any aggressive statements made
by a disputant and encouraging positive statements where possible. This helps
develop a framework within which to manage the dispute. Next, the delegation brings
to the fore the parties’ previous good relationship to rebuild basic relations in order
to move to reconcile them. The Jaha will then provide examples from precedents,
describing how similar disputes have been resolved in the past. After meeting, the
first party’s delegation meets separately with the other party, and they follow the
same process as described above except they will also tell them about the first party’s
claim.85 The delegation party will go back to the claimant to talk to them about what
the other party wants. These negotiations will continue until they reach a satisfactory
solution for both parties.86 If there is no agreement and reconciliation, the Jaha
delegation, disputants and even the community all suffer a grave loss of face and
offence to their honour.87

When the delegation has finished the previous stage, and if they have been
successful in obtaining agreement between the parties about forgiveness or
compensation, they then help plan a ceremony to signify that the dispute is resolved.

80
Pely, (n 53) 430.
81
Ibid.
82
Ibid.
83
Gellman and Vuinovich (n 51) 138.
84
Ibid.
85
Ahmed Saleh Suleiman Owidi, 'Bedouin Justice in Jordan: The Customary Legal System of the
Tribes and its Integration into the Framework of State Polity from 1921 Onwards' (PhD Thesis,
The University of Cambridge, 1982) 40.
86
Pely, (n 33) 83.
87
Pely, (n 53) 431.

106
 The ceremony announces the result of Sulha publicly. The Jaha delegation sends
invitations to family members, special guests, and the wider community. This
invitation sets forth the time and place of the ceremony, which is generally the village
centre because the restoration of honour relies on a public viewing. The ceremony
will start with shaking hands, which acts as a public demarcation of the end of
violence between the families. After that, the defendant announces that what
happened was wrong and then the claimant announces the dispute has been resolved.
Finally, they share a hot meal to signify the restoration of peace.88 As can be seen,
the hallmark cultural values of honour, saving face, wisdom, generosity, respect,
dignity, and forgiveness operate through Sulha.89

This process, practised by Bedouins for hundreds of years, has features that are
replicated in current dispute management processes. However, it combines them in
a different and uniquely Bedouin manner. This process is similar to shuttle mediation
in Australia, except there is a panel or committee selected based on specific attributes
related to their position within the tribes. Moreover, they move between the parties
rather than the parties coming to them. They also may be more coercive than would
occur in a facilitative shuttle mediation. This process is not mediation, even though
it is colloquially described as mediation. It follows an inquisitorial evidence
gathering process, much like an arbitration or civil law country civil trial. The process
starts like shuttle mediation before evolving into a private determinative arbitration
by the panel of delegates. Elements of the evaluative model of mediation are also
present, as the delegation may provide advice and opinion on a suitable resolution.
However, they ultimately decide the matter by imposing their opinion if the parties
do not readily accept possible party solutions. The similarities are present, as Wade90
describes evaluative mediation as having a skilled mediator who can ‘define topics,
and create a range of options and solutions for each topic, and attempt to negotiate
acceptable solutions.’91 Sulha involves the third party delegation operating a shuttle
between parties, and persuade each side to stop revenge, to hear witnesses, consider

88
Gellman and Vuinovich (n 51) 138.
89
Abu‐Nimer, (n 36) 35.
90
John Wade, 'Evaluative Mediation-Elephants in the Room?')
<http://www.mediate.com/articles/wade-evaluative-mediation.cfm>.
91
Ibid.

107
 evidence, and craft an agreement.92 Moore93 confirms this idea when he states that
the evaluative model involves the third party using ‘limited joint sessions, extensive
separate private meetings, and shuttling between them.’94 The granted authority to
conduct the private session, evaluate the evidence, and craft the suitable solution,
makes the evaluative model, together with aspects of the arbitration approach, the
dominant feature of the Jordanian Indigenous dispute management process.

This approach is then layered by requirements of the culture that adhere to the
religion of Islam, as Jordan is a Muslim country. When Islam arose in the middle
east, it found some Bedouin practices and traditions could be adopted to suit the
teachings of Islam, such as dispute management processes. These processes could
help the people to put an end to their dispute in a mutually acceptable manner and as
such they remain a current influence on the practice of mediation in Jordan. This
influence is now addressed in the next section.

4.2 Mediation in Islam

The main religion of Jordan is Islam,95 with Muslims comprising 93.8 per cent of
the population.96 The influence of Islam can be traced back to the early 7th century.97
It establishes Shariah as a code to determine a Muslim’s obligations, both in ethics
and legally.98 The mediation style process for managing disputes shares much with
the Bedouin approach, which existed before Islam.99 Islam encourages solving
disputes peacefully to ensure the smooth running of Muslim affairs and provides a

92
Pely, (n 33) 86.
93
Christopher Moore, The Mediation Process: Practical Strategies for Resolving Conflict (John
Wiley and Sons, 2014) 56-57.
94
Ibid.
95
The Constitution of The Hashemite Kingdom of Jordan 1952 (Jor) ch 1 art 2 ('Jordanian
Constitution Act').
96
CBS News, 'The Most Heavily Muslim Countries On Earth')
<https://www.cbsnews.com/pictures/most-heavily-muslim-countries-on-earth/2/>.
97
See generally, Vandana Singh, 'Alternative Dispute Resolution In Islam: An Analysis' (2017) 1
Journal of the Indian Law Institute, 142.
98
Onder Bakircioglu, 'The Principal Sources of Islamic Law' in Tallyn Gray (ed), Islam and
International Criminal Law and Justice (Torkel Opsahl Academic EPublisher, 2018), 50.
99
Othman (n 74) 64.

108
 system of courts to support this.100 As Ramahi101 states, the court is not only the
ultimate truth-finding mechanism in Islam, but there is also a range of dispute
resolution tools known as Sulh, that disputants can utilize.102 The Islamic civil code,
which was enacted in the late 19th century, encourages using Sulh as an amicable
process for managing disputes. Sulh is defined in the Code as a ‘contract removing a
dispute by consent. Furthermore, it becomes a concluded contract by offer and
acceptance.’103 Muslims will use Sulh when a judge is not available, or if attending
court would create hardship.104

Mediation, as a dispute management process, is known by the term Sulh, and has
a prominent status in Islam.105 Mediation is a term that sees little reference in Islamic
jurisprudence.106 Sulh, is used and refers to a flexible process that follows a
combination of processes encompassing negotiation, mediation or conciliation.107
Baamir108 confirms that Sulh can be translated as mediation, conciliation, or
negotiation since there is no semantic difference between them in the Arabic
language.109 Islamic history has rich examples of using this practice. Sulh al
Hudaibiyah is the most famous dispute in Islamic history. The Prophet Mohammad
adopted Sulh as the third party intervener to stop the war between the people of
Mecca and Madinah, by engaging in the process of negotiation with the parties to
achieve an acceptable settlement.110

The Koran encourages the disputants to adhere to peaceful tools when

addressing disputes: ‘If two parties among the believers fall into a quarrel, make ye
peace between them . . . make peace between them with justice, and be fair: for God

100
Md Zahidul Islam, 'Provision of Alternative Dispute Resolution Process in Islam' (2012) 6(3)
Journal of Business and Management, 31.
101
Al-Ramahi, (n 21)11.
102
Ibid.
103
Ahmad Cevdet Pasha, Al-Majalla al-Ahkam al-Adaliyyah (CreateSpace Independent
Publishing Platform, 2016) 176.
104
Othman (n 74) 68.
105
Basheer Alsaleeby, Alternative Disputes Resolution (Dar Wael Publishing and Distribution
1ed, 2010) 25.
106
Essam Alsheikh, 'Distinctions between the Concepts Mediation, Conciliation, Sulh and
Arbitration in Shari'ah Law' (2011) 25 Arab Law Quarterly Journal 367, 380.
107
Singh (n 97) 142.
108
Abdul Rahman Yahya Baamir, Shari'a Law in Commercial and Banking Arbitration: Law and
Practice in Sudi Arabia (Ashgate Publishing Limited, 2010) 154.
109
Ibid.
110
Al-Ramahi, (n 21) 6.

109
 loves those who are fair and just.’111 Prophet Mohammad has also encouraged
Muslims to adopt peaceful tools to compromise and mediate disputes, such as those
between fighting clan members and private ones, including those between family
members.112 Thus Islamic jurisprudence encourages amicable dispute management.

Sulh is the oldest practice of dispute management in Islam, and its roots are found
in Muslim tribal society. When Islam arose, the process was amended to be more in
line with Islamic principles.113 Kirazli114 confirms this adoption from existing Arab
customs being modified to suit the principle of Islam by the Prophet Mohammad.115
According to Özçelik,116 it is difficult to differentiate between the Islamic and Middle
Eastern dispute management approach because both encourage and adopt the same
procedures, which is to have a third party act as a negotiator between disputants to
reach a peaceful solution for them and the community.117

The Sulh process was practised within the framework of Arab tribal society by
Shaykhs, noblemen and soothsayers, who played an essential role as third-party
mediators in all disputes within the tribe or between rival tribes.118 These figures have
continued to resolve disputes within their tribes after the establishment of the Islamic
polity, but it was not for a long time. As Othman119 notes, with ‘the merging of
political and adjudicative powers… [comes] the shifting of the locus of authority
from the people and their longstanding customs to the representatives of the central
Islamic government.’120 This means that the dispute resolution methods, in general,
and mediation process in particular, have been practised by Islamic officials, such as
judges undertaking to mediate disputes or judges referring parties to mediators,
instead of the elders or Shaykhs.121

111
Verse 9 in Sura AlHujurat (The Chambers) ('Sura AlHujurat').
112
Alsaleeby (n 105) 26.
113
Nora Abdul Hak and Hanna Ambaras Khan, 'The Application of Sulh in Resolving Community
Disputes' (2013) SSRN Electronic Journal, 16.
114
Kirazli (n 26) 26.
115
Ibid.
116
Ozelik (n 30) 9.
117
Ibid.
118
Mohammed Abu-Nimer, 'An Islamic Model of Conflict Resolution: Principle and Challenges'
in Qamar AlHuda (ed), Crescent and Dove: Peace and Conflict Resolution in Islam (US
Institute of Peace Press, 2010) 74.
119
Othman (n 74) 67.
120
Ibid.
121
Ibid 90.

110
 To understand the Sulh way of managing disputes according to the Islamic
concept, it is necessary to consider the role of the third party, the community and the
techniques used in the process. Abdalla122 explains that the role of the third party in
the Islamic management of disputes, in general, is to restore Islam’s goals of justice
and equity that exist in Islamic resources such as the Koran. 123 The third party aims
to achieve this by leading the disputants away from distorted beliefs and practices
that have influenced their relationships with each other, and move them towards
justice, compassion, and equality.124 Shahram125 adds that the third party aims ‘to
create peace and save face for both parties, the family, the community and himself
within the community.’126 The role of the intervener can be performed according to
the Islamic concept if they assist the parties to reach a fair agreement for both parties,
and if they do not contravene the principles of Islam or affect the common good
negatively. It is noted that the Muslim community is a collective society according
to Hofstede’s dimensions, and they will prefer to focus on the needs and rights of the
community over individual ones. Thus, the third party will direct the disputants to
consider the common good and the Islamic principle when they craft their solution.

The community role in Islamic dispute management is essential as it ‘can

provide legitimacy, sustainability, and effectiveness to a dispute resolution
process.’127 Muslim culture is described as the culture of relatedness, and is based on
the family and inter-personal relational patterns.128 This culture puts responsibilities
and duties on the community’s members to support each other, such that when a
dispute occurs they intervene by providing support to ensure improvement, or sustain
the parties to a resolution of the dispute. For example, the family members of
disputants can interfere in the dispute to convince the parties to use Sulh as a peaceful
method, to convince them to accept the suggested solutions offered by the third party
intervener, and to prevent an escalation of the dispute. The community operates as

122
Amr Abdalla, 'Principles of Islamic Interpersonal Conflict Intervention: A Search within Islam
and Western Literature' (2001) 15 Journal of Law and Religion, 160-178.
123
Ibid.
124
Ibid.
125
Nadia Shahram, 'A Special Approach to Mediation for Moslem Clients' (2015) 17 Cardozo
Journal of Conflict Resolution 823, 830.
126
Ibid.
127
Abdalla (n 122) 175.
128
Çiğdem Kâğitçibaşi, 'A Critical Appraisal of Individualism and Collectivism: Toward a New
Formulation' in Uichol Kim et al (eds), Individualism and Collectivism: Theory, Method, and
Applications (Sage Publications, 1994), 62.

111
 motivation for the intervener and disputants to achieve an outcome based on the
common good and Islamic principles, fitting the notions of an HCC.

Abdalla129 states that Islamic dispute management adopts an adjustable model,

meaning ‘an intervention technique should best correspond to the stage of a dispute
with the purpose of restoring justice and adhering to Islamic principles and values.’130
The processes are flexible and do not always progress in a linear fashion. The third
party has to adopt a suitable technique for the particular dispute in order to restore
justice, by encouraging reconciliation between the disputing parties according to
Islamic principles.

The religion of Islam and Bedouin culture have crafted the current form of
mediation used by many Jordanians. The process parallels an advisory or expert
mediation style in which the third party must be precise and carefully apply the
principles of Islam in advising a suggested solution.131 The Jordanian legislature, in
adopting a mediation process, has followed some of these traditions, given its
connection with the religion of Islam and the Indigenous culture, and this should
makes the law of mediation more acceptable in Jordanian society.

Jordan has legislated for marital disputes to follow a mediated resolution,

according to Islamic theory, in the Jordanian Personal Status Act 2010. Article 114
enables using amicable dispute management for disputes between a husband and
wife. This may happen when one of them requests separation by divorce, 132 and the
judge can then choose two mediators, one from the husband’s family and the other
from the wife’s family, who are entrusted to assist the parties reach an amicable
resolution. These mediators are known to the parties, unlike the impartiality of
mediators in the West. If the family members cannot participate, the judge can choose
two mediators who are well known and experienced, who may be more impartial,
and who are considered as having the wisdom and demonstrated ability to mediate
between the disputants. The mediators make an effort to understand the nature of the
spouse’s dispute. This is done by hearing each party’s story in the same session or
separately, and then the mediator suggests a suitable solution. The optimal goal is to

129
Abdalla (n 122) 178.
130
Ibid.
131
Alsaleeby (n 105) 20.
132
The Personal Status Act 2010 (Jor) art 114 and art 126 ('Personal Status Act ').

112
 remove ill feelings and re-establish communication channels between the spouses. If
the process does not succeed in this regard, they can then advise the judge to
pronounce the divorce between the parties.133 While Islam operates in certain
restricted areas of dispute, such as family divorce, the law provides for mediation in
the mainstream public system in Jordan.

4.3 Mediation in Jordan’s Legal System

The Hashemite Kingdom of Jordan was established as an independent country

in 1946 with a land area of about 92,000 square kilometers.134 Jordan is a developing
country that has faced multiple difficulties in the last century in areas such as an
influx of refugees, water shortage, and economic insecurity. To overcome this, the
Jordanian government has adopted ongoing necessary economic and legal reforms.135
One such economic reform was encouraging privatization of some government
institutions, as has occurred in many countries influenced by the World Bank and
International Monetary Fund, in an attempt to enhance efficiency in these institutions
and to create a competitive market.136 Correspondingly, legal reforms have aimed to
create a favourable environment to increase investment and sustain growth, such as
the Jordanian Investment Act 2014.137 This reform process has seen Jordan
improving its economic circumstances to some degree in recent years.138

The recent signing by Jordan of the United Nations Convention on International

Settlement of Agreements Resulting from Mediation (known as the Singapore
Convention) on 7 of August 2019 is a sign of this progress. This Convention aims to
provide a globally recognised enforcement mechanism to solve cross-border

133
Personal Status Act art 132.
134
Tariq Hammouri, Dima Khleifat and Qais Mahafzah, 'Chapter 4: Jordan' in Nadja Alexander
(ed), Arbitration and Mediation in the Southern Mediterranean Countries (Kluwer Law
International 2007) 69.
135
Sonbol (n 43) 60.
136
See, e.g., Jane Harrigan, Hamed El-Said and Chengang Wang, 'The IMF and the World Bank
in Jordan: A Case of Over Optimism and Elusive Growth' (2006) 1(3) The Review of
International Organizations 263-292; Jane Harrigan, Chengang Wang and Hamed El-Said,
'The Economic and Political Determinants of IMF and World Bank Lending in the Middle East
and North Africa' (2006) 34(2) World development 247-270.
137
The Investment Act 2014 (Jor) (‘Investment Act ').
138
Hammouri, Khleifat and Mahafzah (n 134) 69.

113
 commercial disputes via mediation.139 Jordan is one of the early Arab countries
moving in this direction.140 This signature has paved the way to facilitate the
enforcement of settlement agreements in Jordan that result from mediation and
recognise mediated settlement agreements that happened in other jurisdictions. It is
an encouraging move but is in its early days and relates to cross border disputes. 141

As explained in chapter 3, the current central system for dispute resolution in

Jordan relies on courts following the inquisitorial style, according to which the judge
plays a vital role in preparing evidence and questioning witnesses, and based on
finding the truth, the judge decides a matter. Parallel to economic development and
legislative reforms, the Ministry of Justice reviewed and reformed the court
proceedings to enhance the efficiency of the court system, by creating and
establishing new forms of dispute resolution such as arbitration and mediation.142
Jordan was impressed with the international movements in developing alternative
solutions for managing disputes other than through litigation. Primarily it was
attracted to the successful American experience of adoption of mediation in that
country. The legislature was encouraged to adopt this process, as the customary
practice within Jordan meant that it had a traditional acceptance of a process other
than litigation.143 Thus, the Jordanian legislature implemented mediation law as a
pilot, restricted to the District of Amman, to trial dispute resolution mechanisms,
beginning in 2003. The first formal law of mediation was the Mediation in Resolving
Civil Disputes Act, (No 37) 2003, which was replaced in 2006 with the Mediation for

139
See further, Timothy Schnabel, 'The Singapore Convention on Mediation: A Framework for the
Cross-Border Recognition and Enforcement of Mediated Settlements' (2019) 19 Pepperdine
Dispute Resolution Law Journal 1; Chua Eunice, 'The Singapore Convention on Mediation—A
Brighter Future for Asian Dispute Resolution' (2019) 9(2) Asian Journal of International Law
195-205.
140
Sara Koleilat-Aranjo and Aishwarya Nair, 'Singapore Convention Series – Mediation in the
Middle East: Before and after The Singapore Convention', Kluwer Mediation Blog (Blog Post)
<http://mediationblog.kluwerarbitration.com/2019/10/30/singapore-convention-series-
mediation-in-the-middle-east-before-and-after-the-singapore-convention/>.
141
See, United Nations Convention on International Settlement Agreements Resulting from
Mediation 2018 (Singapore Convention)
https://www.uncitral.org/pdf/english/commissionsessions/51st-session/Annex_I.pdf.
142
Hammouri, Khleifat and Mahafzah (n 134) 74.
143
Mohammad Ahmad Al-Qatawneh, 'Mediation in Settlement the Civil Disputes ' (LLM Thesis,
Mutah University, 2008) 30.

114
 Settlement of Civil Disputes Act,144 which in turn has undergone further minor
amendments in 2017.

The Mediation for Settlement of Civil Disputes Act 2006 created an independent
department, named the Mediation Department, which was established in Jordan on
June 1, 2006, to operate within the court structure.145 The first Mediation Department
was at the Amman Court of First Instance. The department now specialises in
applying mediation processes in civil cases in every First instance court in Jordan.146
More than 40 judges and lawyers initially received training in the facilitative
mediation process by the American Bar Association, over a 40-hour mediation
course.147 These judges and lawyers were then accredited to work in the Mediation
Department as judge mediators and specialised mediators.

The mediation program at the Amman Court of First Instance was a success as
an effective alternative to litigation. Statistics indicated a significant improvement in
referrals from June 2007 to May 2008. Six hundred and forty seven cases were
referred to mediation, and these cases were resolved in a timely manner.148 However,
Ta'amneh149 confirmed this success has declined since 2010, and he attributes the
decline to lack of awareness of the availability and benefits of using mediation
amongst the public and lawyers.150 Alahmad151 adds that even though the mediation
program applied in all Jordanian courts, it was not widely promoted and so mediation
in these courts was insufficiently exploited.152 Moreover, mediation had little media
coverage, and Jordanian lawyers had little interest in mediation at the time, allegedly
considering it to be a waste of their clients’ time.153 Even though the law of mediation

144
The Mediation for Settlement of Civil Dispute Act 2006 (Jor) art 12 ('Jordanian Mediation
Act').
145
Jordanian Mediation Act 2006, art 2.
146
Ibid.
147
Lynn Cole, Nancy Fashho and Ahmad Yakzan, 'Jordan Leads the Way in Mediation in the
Arab Middle East ') <http://www.nadn.org/articles/ColeLynn-JordonLeadsTheWay.pdf>.
148
Progress Report on the Progress of Court-Related Mediation Program in Jordan between June
2007 - May 2008 Amman (American Judges and Lawyers Association-Rule of Law Initiative,
('The Progress of Court-Related Mediation Program Report').
149
Khaled Ta'amneh, 'Mediation as an Alternative Commercial Disputes Resolution in Jordanian
Law' (LLM Thesis, Jadara University, 2011) 56.
150
Ibid.
151
Rula Al Alahmad, 'Mediation for Settling the Civil Disputes in the Jordanian Law' (PhD
Thesis, Amman Arab University for Postgraduate Studies, 2008) 44.
152
Ibid.
153
Ta'amneh (n 149) 57.

115
 empowers judges to conduct mediation, or to send cases away from the court to
private mediators after getting the parties’ consent, the judge’s role is not as well-
activated as it is supposed to be in all Jordanian courts.154 Thus, the mediation process
is not clearly set forth as a particular model to be followed in the legislation, leaving
it largely up to the individual judge. Somewhat surprisingly, given the HCC and
awareness of collaborative processes, mediation as legislated for in Jordan has faced
several obstacles that have hindered its success.

The legislated mediation in Jordan is court-mandated, although the parties are

consent is important. The mediation legislation states that after meeting the parties
and their representatives, the judge of the Civil Case Management, or the judge or
Magistrate in the matter, can refer the dispute to a mediator if the parties consent.155
This procedure enhances the American concept of ‘the multi-door courthouse’,
which is ‘a single courthouse where cases are screened and then referred to the
appropriate dispute resolution doorway or portal.’156 When the parties submit their
dispute to the court, the judge will assess the dispute to determine if the case is
appropriate for using mediation or not. Then, the judge will ask the parties if they
want to refer their case to mediation. However, having to consider the parties’
consent as a prerequisite to referring the matter to mediation may reduce the uptake
of the process. Rashdan157 suggests that the Jordanian legislature must adopt a
compulsory form of mediation to improve the referral mechanism, and to increase
the number of cases referred to mediation in Jordan. This may offer one possible
explanation as to why court-mandated mediation has not achieved a significant
uptake in Jordan in the last ten years.

Furthermore, parties who agree to use mediation instead of litigation also have
to get the judge’s consent before the case can be referred to a mediator.158 Mediation
for Settlement of Civil Disputes Act 2006 s7/B confirms the mediation process is in

154
The Progress of Court-Related Mediation Program Report (n 148).
155
Jordanian Mediation Act, art 3(A).
156
Marilyn Warren, 'Should Judges be a Mediators?' (2010) 21 Australasian Dispute Resolution
Journal, 81. See also, Michael Legg, 'Mediation of Complex Commercial Disputes prior to
Litigation: The Delaware Court of Chancery Approach' (2010) 21 Australasian Dispute
Resolution Journal 44.
157
Ali Mahmoud Al-Rashdan, Mediation in Settlement the Disputes (Dar Al-Yazoury Scientific
for Publishing, 2016) 80.
158
Jordanian Mediation Act, art 3(B).

116
 response to a court order, when it states that the mediator must send their report to
the Court after finishing the process, irrespective of whether it was successful or
not.159 In case the mediation is unsuccessful, the mediator has to clarify the reason
for this failure to the judge (See appendix 5), and if successful, the mediator must
also report the successful outcome (See appendix 6). Judges can order costs be paid
by a party if they are identified in the mediator’s report as contributing to the failure
of the process.160 This legislative mechanism never precludes the parties from using
private mediation outside the court by appointing their own mediators.

The Jordanian legislature has recognised two types of mediators. One is a

mediator judge, who may be nominated from the Magistrates Court and First Instance
Court by the Chairman of the First Instance Court. The judge led mediation is subject
to time constraints as the mediation has to be completed within three months and the
settlements arising out of them are final. Another type is a private mediator, who is
appointed by the Head of the Judicial Council from amongst retired judges, lawyers,
and professionals of long experience and who are known for their impartiality and
integrity.161 Private mediations are not privy to the enforcement mechanisms that are
available to the judge led mediation. These options raise several issues.

First, the judicial mediation is the more dominant, being used more often than
private mediators. This may be because a judge’s authority is more respected and
trusted from disputants’ perspectives.162 Rashdan163 suggests that the disputants may
prefer resorting to the judicial mediator instead of the private mediator, because the
disputants perceive judge mediators to have a greater capability of resolving their
disputes and achieving fair and reasonable settlements.164 However, there is no
empirical research in Jordan to support this claim.165 The second issue is the time
constraints, which are regulated differently when submitting the files to a judge
mediator or a private mediator.166 While the brief memorandum of parties’ claims or

159
Jordanian Mediation Act, arts 7 ((B) and (C)).
160
Jordanian Mediation Act, art 7 (D).
161
Jordanian Mediation Act, art 2.
162
Alahmad (n 151) 50.
163
Al-Rashdan (n 157) 40.
164
Ibid.
165
Ta'amneh (n 149) 25.
166
Jordanian Mediation Act, art 4.

117
 defenses must be submitted to the private mediator within a period not exceeding 15
days from the date of the referral, the law does not impose any period to submit the
brief to the judge mediator. Alsaleeby167 suggests that this step may be to ensure the
seriousness of parties when they participate in private mediation.168 A likely cause
may be that such pleadings are available in the case file in the court’s hands, where
the mediator judge can easily access this file to start his/her work. In addition, the
enforcement of the agreement is more assured through the judge led mediation.

The Mediation for Settlement of Civil Disputes Act 2006, supports the
evaluative model of mediation through the legislations wording.169 Levin170 states
that the role of the third party in this model is giving advice and providing opinions
on the merits of arguments and the relative success of each party’s case, by predicting
the outcome of the case if it was decided by a court.171 Boulle172 contributes that such
mediations provide a role for the intervener in which they can provide advice
according to the facts, evidence, law and the parties’ rights, and entitlements; the
objective is to settle within an anticipated range of likely outcomes if the matter was
to be decided before a court or within an industry arena.173 Riskin174 describes this
role as a third party who is qualified to give advice, firmly guiding the parties to an
appropriate settlement.175 Moore176 states that this process is a specific kind of
advisory model; it focuses on evaluating the legal issues and legal rights of the
parties.177 After comparing these definitions with the Jordanian model, it would
appear the Jordanian law of Mediation for Settlement of Civil Disputes Act adopts the
evaluation model when it states that the mediator can express their opinion, evaluate

167
Alsaleeby (n 105) 100.
168
Ibid.
169
Jordanian Mediation Act, art 6.
170
Murray Levin, 'The Propriety of Evaluative Mediation: Concerns About the Nature and Quality
of an Evaluative Opinion' (2000) 16 Ohio State Journal on Dispute Resolution 267, 269.
171
Ibid.
172
Laurance Boulle and Nadja Alexander, Mediation Skills and Techniques (LexisNexis
Butterworths, 2 ed, 2012) 2.
173
Ibid.
174
Leonard Riskin, 'Understanding Mediators' Orientations, Strategies, and Techniques: A Grid
for the Perplexed' (1996) 1 Harvard Negotiation Law Review 7, 24.
175
Ibid.
176
Moore (n 93) 46-59.
177
Ibid.

118
 the evidence, present legal evidence and precedent cases, and adopt other procedures
that facilitate the process of mediation.178

The evaluative model is preferred when the disputants are not able to understand
their situation through self-reflection, analysis, and problem-solving skills. Wade179
states that, clearly, not all people can decide wisely and that this process ‘requires
some basic information and direction about normal behaviour, guessed judicial
outcomes, market rates, and forms of power.’180 The Jordanian legislature preferred
this style of mediation, giving the mediator an apparent ability to promote the
agreement.181 This model is also suited where it is a legal context in which the
mediator is legally trained and capable of giving the requisite advice, as it ‘provides
disputants with enough information to make decisions confidently in mediation and
to avoid subsequent feelings of loss or disappointment.’182 This selection of the
evaluative model in preference over a facilitative model more closely aligns with
Jordan’s experience of the wise elder giving advice and directing outcomes which is
part of traditional mediation processes in Jordan.

The Jordanian legislature seems interested in giving the mediator broad power
to bring the disputants’ views closer and resolve the dispute, instead of empowering
the parties so they can come to an agreement based on their own generated options.183
The Jordanian evaluative model, in which a mediator can propose solutions, could
lead to parties feeling disempowered or even exploited.184 To convince the parties
about the proposed solution, the mediator will likely outline the weaknesses of the
parties’ cases and evaluate the cost of pursuing a litigated resolution. When this
happens, the mediator risks seeming biased as they support an outcome that may
favour the case of one side, which will affect the mediator's perceived impartiality

178
Jordanian Mediation Act, art 6.
179
Wade (n 90) 2.
180
Ibid.
181
Alsaleeby (n 105) 81.
182
Ellen Waldman, 'The Evaluative-Facilitative Debate in Mediation: Applying the Lens of
Therapeutic Jurisprudence' (1998) 82 Marquette Law Review 155, 167.
183
Bakr Abd-Fatah Al-Sarhan, 'Mediation on the Hands of the Mediator Judge: The Concept,
Importance and Procedures' (2009)(1) Jordanian Journal in Law and Political Science 57, 84.
184
Jeffrey Stempel, 'Beyond Formalism and False Dichotomies: The Need for Institutionalizing a
Flexible Concept of the Mediator's Role' (1996) 24 Florida State University Law Review 949,
972.

119
 and may conflict with balancing the parties' power.185 As Waldman186 says, the
evaluative mediator may ‘vitiate this neutrality and destroy the rapport necessary for
truly productive interactions.’187 If the mediator cannot assist the parties to reach a
successful settlement for both, then the agreement may not hold, or one party may
subsequently choose to pursue litigation further.

Adopting court-mandated mediation using an evaluative model does provide

some benefits. Otis and Reiter188 state that ‘the presence of a judge provides the ideal
foil to agency costs and efficiency losses between the parties and their attorneys, by
providing an experienced supervisory presence during the negotiations.’189 When a
judge acts as a mediator, they can help guide the parties to a clearer understanding of
their differences in a confidential process that gives a satisfactory outcome, as it also
resolves disputes quickly, which saves court resources as well as litigants’ time and
money. The traditional respect by parties for judges and wise elders ensures the
cooperation necessary to encourage a solution.190

This court-mandated mediation, which follows an evaluative mediation model,

is very different from the Australian concept of facilitative mediation. The judge,
who transforms into an evaluative mediator, may act as a private judge or arbitrator
in the mediation.191 The goal of the evaluative model is to permit the mediator to
provide and suggest an amicable solution for parties. This model does not aim to help
the disputants to improve their relationship, enhance communications through the
negotiation process, or to empower parties to reach satisfying voluntary agreements
by themselves. This model therefore does not support the critical philosophical
hallmarks of mediation such as empowerment through letting the parties create their
own solution.192

185
Al-Sarhan (n 183) 84.
186
Waldman (n 182) 160.
187
Ibid.
188
Louise Otis and Eric Reiter, 'Mediation by Judges: A New Phenomenon in the Transformation
of Justice' (2006) 6(3) Pepperdine Dispute Resolution Law Journal 351-403, 366.
189
Ibid.
190
Warren (n 156) 81.
191
Ibid 82.
192
National Alternative Dispute Resolution Advisory Council (NADRAC), 'The Resolve to
Resolve – Embracing ADR to Improve Access to Justice in the Federal Jurisdiction ' (2009), s
7.24.

120
 Facilitative mediation provides the third party with the ability to control the
process, but not the resolution in which the parties adopting their own solutions must
reach the agreement.193 Court-mandated mediation in Jordan puts the parties under
the judge's control and also puts them under pressure to accept the suggested solution.
Still, this process is voluntary in Jordan, which means the party can refuse the
process, yet the adopted role of the judge mediator will be highly influential. The law
supports the authority of the judge mediator to evaluate the legal status of parties and
clarify the strength and the weakness in their claim, which leads to the parties seeing
the judge as authoritative and as a wise elder to be obeyed.194 When a party hears
their argument is weak, they are likely to relinquish their claim, while the other party
will be unlikely to accept any solution other than that suggested by the judge
mediator, as they believe they have a strong claim, as recognised by the judge.195 So,
the adopted process may not achieve the ultimate goal of mediation, which is to
empower parties to reach a fair and reasonable solution, and to adopt more
collaborative communication that is acceptable to both and therefore likely to be
sustained and supportive of ongoing relations.

The adopted role of judge mediator in the Jordanian law may generate other
issues, as the role of judge mediator is inconsistent with their role as a judge. Judges
are supposed to apply the law, to evaluate the evidence and to decide the appropriate
sentence, and they do not generally mediate, facilitate, or accommodate the parties’
issues, including non-legal concerns.196 Meeting the parties in a private session may
also compromise the public role of arm’s length justice and damage confidence in
the judiciary.197 Any risk that the judge is perceived as anything other than impartial
risks an adverse public perception of justice as a transparent forum, and it may set up
a conflict of interest.

A judge is an essential judicial resource, and this is at risk if they are instead
redirected to mediations.198 A judge who mediates a matter is ruled out from sitting
on the case under article 10 of the Mediation for Settle Civil Dispute Act 2006. To

193
Moore (n 93) 8.
194
Steve Lancken and Ashna Taneja, 'Judging Mediation'
<https://www.lawyersweekly.com.au/opinion/11179-judging-mediation>.
195
Al-Sarhan (n 183) 84.
196
Lancken and Taneja (n 194) 1.
197
(NADRAC) (n 192).
198
Warren (n 156) 82.

121
 overcome this resource issue, the legislature’s use of private mediators may help to
decrease the pressure on valuable adjudicative resources. The Mediation Department
has 103 mediators who are registered as available.199

A major concern is that there is no provision for the Jordanian legislator

requiring any accreditation, nor is there any provision of any training courses for
mediators, whether they are a mediator judge or private mediator.200 The legislation
requires two conditions to practice mediation in Jordon. Firstly, the mediator must
have experience in the field, for example by being a judge or a lawyer, or secondly,
a non-legal mediator must have expertise in the subject of the dispute, for example
by being an engineer or doctor, but without any course training requirements or
expertise in mediation techniques. Thus, while the Jordanian legislature has adopted
the evaluative model of mediation, the literature confirms that the evaluative
mediator does not need the training. For example, Levin201 states that it is common
for evaluative mediators to be Judges, retired judges, or lawyers who have
considerable legal expertise,202 and therefore do not need training as such.
Lenz203addresses the evaluative mediation when he claims that evaluative mediators
‘need to have expertise in the substantive areas of the dispute with no necessary
qualifications in mediation techniques.’204

However, initial training was provided by US mediators to 40 Jordanian judges

and lawyers. This happened because follow up training courses would help the
mediators to enhance their practical skills and to ensure a general standard in
providing a common mediation process. As Etty et al. have stated, ‘[i]nadequately
trained mediators jeopardise the status of mediation as a profession and may cause
irreversible damage, eroding the public’s belief in mediation as an alternative to legal
proceedings.’205 Thus, having training courses is vital, as it improves the mediators’

199
Judicial Council, 'Special Mediators') <http://www.jc.jo/mediation/private_mediators>.
200
See: Alsaleeby (n 105) 120.
201
Levin (n 170) 269.
202
Ibid.
203
Chris Lenz, 'Is Evaluative Mediation the Preferred Model for Construction Law Disputes?'
(2015) Thomson Reuters 134, 141.
204
Ibid.
205
Etty Lieberman, Yael Foux‐Levy and Peretz Segal, 'Beyond Basic Training: A Model for
Developing Mediator Competence' (2005) 23(2) Conflict Resolution Quarterly 237-257.

122
 performance and competency, and ensures their skills are reinforced, which leads to
a guarantee in the quality and continuity of the mediation process.

The Jordanian government provides no substantive support for research or

statistical observation to determine the problems facing the progress of mediation.206
There are no national centres in Jordan that could play an important role in
sponsoring the mediation program. The absence of these centres leads to the ideal of
mediation not properly reaching the public.207

Teaching mediation as an academic subject in Jordanian universities is rare, even

though it could play a vital role in raising law students’ awareness, and it could offer
them some skills in mediation as a dispute management process.208 Furthermore,
Jordan does not support mediation integration in any school programs that train
primary and secondary school students in dispute management skills, so they can
learn to deal with and reduce disputes in Jordanian culture. This approach has been
taken in Australia in individual schools and has proven to be very successful in
spreading the importance of mediation within the public. Boulle209 has noted that in
Australia ‘[t]hese programs revitalised the community dimension of mediation by re-
emphasising the role in dispute resolution of peers, as opposed to professionals and
administrative hierarchies, in the first instance among school children’.210 Such
programs have a positive impact on school students by developing useful skills to
enable them to take responsibility for their own actions and aid in classroom
management.211 Such an approach provides a critical role in expanding the mediation
system, as it makes the early generation of users understand how this solution can
work in their legal system.212 Tthe actual process model used in Jordan is outlined.

206
Al-Qatawneh (n 143) 85.
207
Al-Rashdan (n 157) 148.
208
Alsaleeby (n 105) 175.
209
Laurance Boulle, Mediation Principles, Process, Practice (LexisNexis Butterworths, 3rd ed,
2011) 356.
210
Ibid.
211
Paul Lindsay, 'Conflict Resolution and Peer Mediation in Public Schools: What Works?' (1998)
16(1) Mediation Quarterly 85-99; Gary Shaw, 'Restorative Practices in Australian Schools:
Changing Relationships, Changing Culture' (2007) 25(1) Conflict Resolution Quarterly 127-
135.
212
See especially, Pauline Collins, 'Australian Legal Education at a Cross Roads' (2016) 58(1)
Australian Universities' Review 30.

123
 4.4 Mediation Models
As the previous discussion demonstrates the Jordanian legislature adopted the
evaluative model of mediation as a preferred model, the interview results confirmed
that this model is the dominant one practised in Jordan. 213 So, this section explores
the six stages of the evaluative model that are followed by the mediator in Jordan.
These are the joint opening session, the fact finding session, agenda and diagnoses,
the private session with each party, the joint negotiation session, and the agreement.
The diagram shows this process working as a funnel when conducting mediation in
Jordan.

Figure 7: The Jordanian Model - Court-mandated Model214

Joint Opening Session

Fact Finding Session

Agenda and diagnoses

Private Session

Joint Negotiation
Session

Agreement

At the joint opening session, the mediator begins by welcoming the parties and
their legal advisors. The mediator will introduce himself/herself and explain their
role as mediator, after which the parties can introduce themselves. The mediator then
reads aloud the decision of referral from Judge/the Magistrate, who is referring the
case for mediation. This decision clarifies and states the main issues in the dispute
and determines the time required for the mediation process. 215 Then, the mediator
will ask the parties their views about their participation in this process, to establish
how willing they are likely to be in responding to suggested solutions without
interfering. After that, the mediator confirms the principle of confidentiality and

213
See Chapter 6 p.156 within.
214
This diagram is developed by the researcher.
215
Al-Qatawneh (n 143) 100.

124
 impartiality of the mediation proceedings.216 The Mediation for Settlement of Civil
Disputes Act 2006 Article 8 states that the ‘mediation proceedings shall be considered
confidential’, which means the procedures, the evidence, or waivers that are made by
the disputants in the mediation process shall not be invoked in front of any court or
anybody whatsoever. Al-Qatawneh217 notes that it is essential to explain the role of
mediator during this stage, and to emphasise their impartiality in order to win the
trust of the parties early on.218 This explaining instils confidence in the parties to trust
the mediation process in order to continue and participate. Thus, the opening session
creates rapport by establishing a positive, comfortable, appropriate and favourable
climate, which supports communication, negotiation and dialogue between the
parties and the mediator. It further reduces the parties’ fear of sharing the facts of
their dispute, it encourages them to speak freely, and it attracts their interest in
obtaining the desired assistance from the mediator.

In the fact-finding session, the mediator will define the disputants' problems to
assist with the diagnosis of the dispute. The mediator will ask the claimant or their
legal representative to explain their claim and views about the subject of the dispute
without going into detail. This process will be repeated with the defendant and their
legal representative.219 Based on this, the mediator draws up an agenda or list of
issues. The mediator summarizes the dispute as presented by the parties and will
rephrase the statements of both parties, reducing any harmful words or phrases. Both
the claimant and the defendant provide arguments to support their concerns. The
mediator uses logic in running the meeting by attempting to address each argument,
which aims to bring the parties to a closer acceptance of the concerns as presented.220
If the mediator cannot succeed in bringing the parties’ views closer, then the mediator
can move to conduct a private session.221

The next stage is the private session. The mediator can meet the parties
individually as appropriate to attempt to bring the parties closer to settlement. Al

216
Alsaleeby (n 105) 152.
217
Al-Qatawneh (n 143) 100.
218
Ibid.
219
Alsaleeby (n 105) 152.
220
Al-Qatawneh (n 143) 100-110.
221
Jordanian Mediation Act, art 6.

125
 Qatawneh222 states that the mediator meets with the parties and their legal
representative alone to allow the parties to express their concerns with the mediator,
as they may not be comfortable in disclosing certain information with the other side,
or they may worry that sharing some suggestions with the other party may make them
appear weak.223 This session is essential for the mediator to gain an understanding of
the nature of the dispute and the parties need to disclose or discuss their concerns in
private.224 The parties are assured that this private session is a confidential session
and falls within the overall cloak of confidentiality that encompasses the entire
mediation. Nothing said by the parties in the private session is returned to the
mediation by the mediator, unless the parties choose to introduce it in the central
mediation. The private session is similar to that undertaken in facilitative mediation
except that the mediator can discuss mediator suggested options for resolution.

According to the Mediation for Settlement of Civil Disputes Act 2006, Article 6,
the Jordanian legislature has effectively adopted the evaluative style, according to
which the mediator has several powers that directly influence the outcome of the
mediation.225 For example, the mediator can point out the weaknesses of parties'
cases and can predict what a judge may do. Also, the mediator can advise the parties
with several recommendations as to the outcome of the issues. The mediator can
evaluate the parties' legal position and the costs versus benefits of pursuing litigation
rather than settling in mediation.226

The following stage is the joint negotiation session. The mediator meets with
both parties in the same place, after hearing and understanding the situation of both
in the private sessions, and privately discussing with the parties any options that have
arisen. This session may start when the parties show and discuss their suggested
solution to settle the dispute, and if they cannot agree on a solution, the mediator can
present their advice on a solution.227 Al Saleeby228 describes this stage as ‘take and
give’ because each party will waive some of their rights to promote a proposed

222
Al-Qatawneh (n 143) 105.
223
Ibid.
224
Don Bowen, 'A Critique of Private Sessions in Family Mediation' (2013) 3(1) SAGE Open, 1.
225
Jordanian Mediation Act.
226
Jordanian Mediation Act, art 6.
227
Al-Qatawneh (n 143) 106.
228
Alsaleeby (n 105) 150.

126
 solution for both of them.229 An acceptance of compromise creates a favourable
climate for the final agreement.

The final phase is the agreement: if the mediator has succeeded in having the
parties settle, either totally or partially, they submit to the Case Management Judge
or the Magistrate Judge a report of the settlement agreement signed by both parties
in the dispute, to be ratified by the Court.230 The agreement shall be considered, after
ratification, as final.231 However, if an agreement is not reached in the report to the
Case Management Judge or the Magistrate Judge, it indicates that the parties did not
reach a settlement, and in this report, the parties’ genuine participation and their
representatives in attending the mediation hearings is also clarified.232 During this
stage, the proceedings of the mediation are still deemed confidential,233 as the
disputants may not use any information that is provided in these sessions before any
court or before any other authority.234 Also, the mediator shall return each party’s
documents that are submitted during this stage of the process, as the mediator bears
legal responsibility for taking or keeping any photocopies.235

4.5 Summary

As with any country, cultural and political factors play an essential role in shaping
the socio-political system.236 Outlined in this chapter are the several legal roots. Jordan
has Bedouin customary law, Sharia codes, and modern Western codes. Each one has
adopted its unique model of mediation, although with clear similarities, and each is
used by a third party intervener or group of interveners to settle the dispute and reach
a solution or management for both parties. Jordan is fundamentally a collectivist

229
Ibid.
230
Jordanian Mediation Act, art 7 (A).
231
Jordanian Mediation Act, art 7(A).
232
Jordanian Mediation Act, art 7(C).
233
Mieke Brandon and Tom Stodulka, 'A Comparative Analysis of the Practice of Mediation and
Conciliation in Family Dispute Resolution in Australia: How Practitioners Practice Across
Both Processes' (2008) 8 Queensland University Technology Law and Justice Journal 194,
261.
234
Jordanian Mediation Act, art 8.
235
Jordanian Mediation Act, art 7(E).
236
Tanja Chopra and Deborah Isser, 'Access to Justice and Legal Pluralism in Fragile States: The
Case of Women's Rights' (2012) 4(2) Hague Journal on the Rule of Law 337-358, 352.

127
society, represented by an HCC, which means community benefits are preferred over
individual benefits.

This chapter has described Jordan’s conduct of formal and informal mediations,
which are common in collectivist cultures that prefer conflict avoidance strategies, and
that find the direct approach to dispute resolution uncomfortable, as it may cause loss
of face. The mediators may commence the private meetings with one party as shuttle
diplomats who are carrying information and settlement ideas from one party to the
other. Once the general outline of an agreement is reached, the disputants may agree
to meet in order to negotiate the finer details. However, as noted in this chapter, the
Bedouin model is an inquisitorial evidence gathering process, mixed with the
evaluative mediation model, because the third party can provide advice and opinions
on a suitable resolution, and they can also gather information, ask questions and hear
witnesses.

The Islamic concept of mediation is a mixture between the Islamic concept of

justice and tribal practice. The Islamic mediation practice follows a flexible or
blended model, which means the chosen mediation technique can correspond to the
type and stage of the dispute. In other words, the mediator can intervene by solving
the problem or by just supervising the parties while reaching their own solution. The
Jordanian legislature has adopted an Islamic concept of mediation only in marital
disputes.

When the Jordanian legislature enacted the law of mediation for solving civil
disputes, this process was court-mandated. The model of mediation follows the
evaluative model. When the parties submit their case to the court, the judge will try
to convince them about the importance of using mediation to solve their dispute. If
they accept the referring of their case to mediation, the judge will send the case
documents to the judge mediator or nominated private mediator from the Mediation
Department.

This chapter has described the stages of the mediation process that are followed
by court-appointed mediation. This chapter has further discussed the features and the
drawbacks of using the evaluative model. The next chapter will elaborate on
mediation practice from an Australian perspective.

128
 Chapter 5: The Australian Framework

5.0 Introduction to Australia

This chapter traces the growth and development of mediation in Australia. It

addresses the development and the issues relating to mediation practice, in order to
understand how mediation has evolved and is currently operationalised in Australia.
In a comparative spirit, the chapter starts with an acknowledgment of the Indigenous
impact on the restorative approach to dispute resolution to understand how
Indigenous approaches have influenced current restorative practices in the
mainstream legal system. Indigenous influence in dispute settlement exists in
Australia through restorative justice projects such as circle sentencing, victim
offender mediation and Murri Courts. It is relevant to a comparative study to address
the historical richness where this has influenced with the current dispute management
systems. Indigenous practices are discussed and their influence on modern practice
are addressed. Next, this chapter outlines several factors that have contributed to
developing the mediation system in Australia. These factors include organisations,
legislation, the adoption of court-mandated mediation, and models of mediation.

5.1 Mediation in the Aboriginal and Torres Strait Islander Indigenous

Culture

The Indigenous people in Australia are referred to as the Aboriginal and Torres
Strait Islander peoples (ATSI). They have lived on this continent continuously for
around 100,000 years.1 Aboriginal and Torres Strait Islanders are comprised of
descendants from over 500 distinct tribal groups on the Australian continent and its
islands,2 each group has its unique culture, customs and language.3 Each group

1
Larissa Behrendt, Aboriginal Dispute Resolution : a Step Towards Self-Determination and
Community Autonomy (Federation Press, 1995) 3.
2
Richard Laurence Broome, Aboriginal Australians, Black Responses to White Dominance
1788-2001 (3rd ed, 2001) 10.
3
Robert Hodge, 'Aboriginal Truth and White Media: Eric Michaels Meets the Spirit of
Aboriginalism' (1990) 3(2) Continuum: Journal of Media & Cultural Studies 201-225.

129
consisted of a large number of small clans, with several extended families in each clan.
Each family had a strong relationship between their members, which generated
extreme loyalty to the family and their clan in a similar manner to the Bedouin. This,
and the fact that no prison system existed amongst semi-nomadic cultures, meant that
disputes resolved quickly, as the disputants needed to maintain solidarity with their
members and harmony with other tribes. This is not to say that at times no violence
occurred between tribes.

The history of dispute resolution amongst the Indigenous people has been passed
down to the next generation as a part of customary law. Customary law governs all
aspects of life, with specific penalties if disobeyed.4 The Indigenous people have
practised consensual problem solving and developed it through the centuries. This has
been highly influential and educative for Western cultures wanting to learn about
restorative justice.5 Like other Indigenous cultures and the Bedouin, the third party in
the dispute resolution process is vested in the council of wise elders (men and women)
who hold most knowledge of religious and ceremonial affairs.6 Those elders are
trustworthy and honest people, who are also concerned for the whole community’s
future.7 The council does not just make the decision for a particular group, but may
intervene in disputes between family members, if they have not been resolved.8 Berndt
and Berndt9 state that ‘although constituted courts did not exist in traditional
Aboriginal Australia, there were councils which did much the same thing, although far
more informally and less systematically.’10

4
Harry Croft, 'The Use of Alternative Dispute Resolution Methods within Aboriginal and Torres
Strait Islander Communities' (2015) Access to Justice 36.
5
David Spencer, 'Mediating in Aboriginal Communities' (1996) 3 Commercial Dispute
Resolution Journal 245.
6
Loretta Kelly, 'Elements of a good practice Aboriginal mediation model: Part II' (2008) 19
Australasian Dispute Resolution Journal 223, 224; R. Thorne, 'Incorporating ADR into
Contemporary Aboriginal Society' (Conference Paper, International Mediation Conference,
1996), 11.
7
Toni Bauman and Juanita Pope, 'Solid Work You Mob Are Doing – Case Studies in
Indigenous Dispute Resolution and Conflict Management in Australia' (Report to the National
Alternative Dispute Resolution Advisory Council, 2009).
8
Behrendt (n 1) 5.
9
Ronald Murray Berndt and Catherine Helen Berndt, The world of the first Australians:
Aboriginal traditional life: Past and present (Aboriginal Studies Press, 1999) 348.
10
Ibid.

130
 As elders have an essential role in the maintenance of order, adjoining tribal
groups provide a significant role in dispute resolution for inter-clan disputes.11 They
interfere to end the dispute to protect the community’s common interests.12 The elders,
with their communication skills and status, act as neutrals to encourage the disputants
to settle their dispute in joint decision-making processes.13ATSI cultures are
collectivist and prefer to support group needs above individual interests. Furthermore,
these high context cultures (HCC) being dependent on community means there is
community pressure to solve the problem.14 Their priority is maintaining harmony
between the community's members.

Disputes arising within communities occur when there is a failure to observe

sacred law or ceremonies, breach of family obligations, accusations of sorcery, breach
of marriage arrangements, commercial disputes or offences against a person, including
the neglecting of children.15 Bauman and Pope16 state that Indigenous people deal with
the dispute in order to protect the harmony in the community, by addressing the
systemic sources of dysfunction.17 ATSI people describe their dispute resolution
practice as peace-making, which aims to embrace a deeper level of healing and renewal
of relationships.18 Behrendt19 has explained the details of traditional mediation
processes that are conducted by ATSI peoples.20 It follows a process by which the
disputants meet at community ceremonies because there can be no fighting at the
ceremonies. The aggrieved person would be careful about the time and place of the
meeting because that would affect who the audience would be. Meetings are held
outdoors, in a familiar but informal place for the parties. The parties face each other in
a seated circle and express their dispute publicly by shouting or yelling at each other.
This releases emotions in an open display of anger in which the aggrieved person yells

11
Helen Bishop, 'Aboriginal Decision Making, Problem Solving and Alternative Dispute
Resolution – Challenging the Status Quo' (Conference Paper, Alternative Dispute Resolution in
Indigenous Communities (ADRIC) Symposium, 27 July 2015), 4.
12
Broome (n 2) 28.
13
Keren Lavelle, 'Ancient Ceremony Transformed into Cross-Cultural Mediation Training'
(2005) 43(2) Law Society Journal 22-23.
14
Behrendt (n 1) 5.
15
Broome (n 2) 34.
16
Bauman and Pope (n 7 ) 115.
17
Ibid.
18
Shirli Kirschner, 'Aboriginal and Torres Strait Islander People and ADR' (2017) Mediate.Com.
19
Behrendt (n 1) 50.
20
Ibid.

131
about the opponent and the perceived wrong. This is a difference in practice to the
Bedouin, who suppress emotional expression. After that, the elders, who have
jurisdiction over the disputants, can call witnesses and ask questions. The elders with
their communication skills and their status act as neutrals to encourage resolutions,
which are centred on joint decision-making processes.21 In the final stage, the elders
can make a statement outlining the dispute, the applicable traditional law, and suggest
a solution.22 Two features characterise this process: first, any management is done by
community’s consensus, and second, the outcome is announced publicly, orally, and
without institutionalised procedures.23

Indigenous peoples, both ATSI and Bedouin share many similarities. First,
affiliation and collective responsibility are appreciated principles in both communities,
which are used to justify interference by elders to protect the community members
from revenge. Both are collective HCCs, as they prioritise the community’s goals and
needs over those of the individual, which leads them to adopt Hofstede’s collectivist
dimensions in their negotiations. Elders as leaders in the community conduct the
mediation process in an inquisitorial fact-finding manner, much like a private
arbitration in which the elder’s decision is enforceable. The cultural process ensures
that the disputants accept the solution and end the dispute. Further, in both cultures,
the result of this process is announced publicly as the community has a vested interest
in the outcome. On the other hand, there are distinct cultural differences particularly
around the expression of emotions. The shuttle or private sessions are considered a
significant feature in Bedouin mediation to ensure face saving and a de-escalation of
emotions between parties. Conversely, the face-to-face meeting is vital in Australian
Indigenous mediation as it allows for a cathartic expression of emotions publicly.
Finally, the mediation process in Bedouin culture is male-dominated and patriarchal,
and women are prevented from participating in it, unlike the mediation process in
ATSI cultures in which wise women deal with women’s business.

Indigenous customary influences in the uptake of alternative dispute management

techniques can be seen in the current Australian approach to disputes. Indigenous
communities, where they can, implement aspects of their dispute resolution processes,

21
David Spencer, Mediation Law and Practice (Cambridge University Press, 2006) 55.
22
Behrendt (n 1) 50.
23
Broome (n 2) 28.

132
in order to take into account traditional values and decision-making structures.24 This
has occurred in several Australian restorative justice programs, which have supported
the involvement of respected Indigenous community members and elders in the
dispute resolution process, such as Youth Justice Conference25 and Justice Mediation
Program26 in Queensland. Restorative strategies used extensively in Australian
jurisdictions as a dispute resolution process is rooted in Indigenous justice traditions.27
These programs encourage the Indigenous people to be one of the members of the
restorative panels on the basis the disputants may prefer the assistance of Indigenous
members to mediate their issues. Also, it aims to enhance justice practices which
actively involve the disputants and the community in the justice.28

5.2 Mediation in Australia’s Legal System

This section provides an overview of the vital factors that have led to the growth
of mediation and the development of the process in Australia.

5.2.1 Mediation Organisations

Mediation started as voluntary services in Australia. An early organised

mediation service commenced as a pilot project in the 1980s with the opening of the
New South Wales community justice centres in 1983.29 These centres played an
essential role in initiating modern Australian mediation.30 The Centres offered

24
Behrendt (n 1) 1.
25
Queensland Government, Youth Justice Conference (Aug 2020) http://www.justice.qld.gov.au/
youth-justice/youth-justice-conferencing.
26
Queensland Government, Justice Mediation Program(Aug 2020)
https://www.qld.gov.au/law/legal-mediation-andjustice-of-the-peace/setting-disputes-out-
ofcourt/justice-mediation/.
27
Simon Little, Anna Stewart and Nicole Ryan, 'Restorative Justice Conferencing: Not a Panacea
for the Overrepresentation of Australia’s Indigenous Youth in the Criminal Justice System'
(2018) 62(13) International Journal of Offender Therapy and Comparative Criminology 4067-
4090.
28
See eg, Carlo Osi, 'Understanding Indigenous Dispute Resolution Processes And Western
Alternative Dispute Resolution, Cultivating Culturally Appropriate Methods In Lieu Of
Litigation' (2008) 10 Cardozo Journal Conflict Resolution 163,166; Dale Turner, 'Perceiving
the World Differently' in Catherine Bell and David Kahane (eds), Intercultural Dispute
Resolution in Aboriginal Contexts (UBC Press, 2013) 59.
29
New South Wales Legislative Council, Parliamentary Debates 1980 5250 ('New South Wales
Parliamentary Debates ').
30
Wendy Faulkes, 'The Modern Development of Alternative Dispute Resolution in Australia' (Pt
LBC Information Services) (1990) 1(2) Australian Dispute Resolution Journal 61-68.

133
 mediation services either free of charge or for a very low cost to members of the
public.31 They conducted mediation with ordinary community members acting as the
third party neutral, following a simple mediation process to resolve matters according
to community norms and the particular parties’ needs.32 These centres provided an
alternative to the adversarial system to deal with problems such as neighbourhood
disputes, which still can ‘cause great aggravation and often lead to serious crimes.’33
The uptake of mediation expanded in these community legal centres and was rolled
out across all Australian states. The promising results in providing quick and
efficient access to justice, particularly in solving problems related to neighbourhood
and small debt disputes, led to the uptake of the process in other domains. In the late
1980s, mediation became popular in the commercial world as a cheaper, quicker and
confidential private resolution that helped maintain business relationships.34

Since that time, the number of organisations offering mediation services, and
institutions who have taken responsibility to develop this process, has dramatically
increased. For instance, the Australian Taxation Office and Defence Force are two
such organisations supporting the use of mediation. Lawyers have particularly been
involved in its development. For example, the Institute of Arbitrators and Mediators
Australia (IAMA), which was established in 1979, has had a significant input into
the mediation process as practised in Australia. The main goal of this body was to
grow the uptake of dispute resolution, and to promote and facilitate dispute settlement
by using certain methods of dispute resolution, in particular mediation.. It has also
aimed to provide training services in dispute resolution processes such as mediation.
The Institute has further helped dispute resolution practitioners to communicate with
each other to discuss matters of common interest, and to develop programs for
admission to professional membership of the Institute.35

31
Nadja Alexander, 'What's Law Got to Do with It-Mapping Modern Mediation Movements in
Civil and Common Law Jurisdictions' (2001) 13(2) Bond Law Review 2, 8.
32
Laurence Boulle and Rachael Field, Australian Dispute Resolution : Law and Practice
(LexisNexis Butterworths, 2017) 91.
33
Laurance Boulle, Mediation Principles, Process, Practice (LexisNexis Butterworths, 3rd ed,
2011) 355; Carole Kayrooz et al, 'Barking Dogs, Noisy Neighbors and Broken Fences:
Neighborhood Dispute Mediation' (2003) 14 Australasian Dispute Resolution Journal 71.
34
Julian Riekert, 'Alternative Dispute Resolution in Australian Commercial Disputes: Quo
Vadis?' (1990) 1 Australian Dispute Resolution Journal 31; Michael Redfern, 'Mediation is
Good Business Practice' (2010) 21 Australasian Dispute Resolution Journal 53; Tania Sourdin,
Alternative Dispute Resolution (Thomson Lawbook Company, 3rd ed, 2008) 207.
35
Boulle and Field (n 32) 111.

134
 Lawyers Engaged in Alternative Dispute Resolution (LEADR) was established
in early 1988. It was a prestigious organisation in Australia, and engaged in dispute
resolution education, training, and services provision.36 This body was involved in
‘promoting and facilitating consensual dispute resolution, and acting as an agent of
change in redefining the role of lawyers as professional problem solvers by being at
the cutting edge of ADR’.37 LEADR has now amalgamated with IAMA to become a
super organsiation called the Resolution Institute.38

This merger of the two institutions (IAMA and LEADR) in 2015, to become the
Resolution Institute, has consolidated the organisational influence and important role
in promoting mediation. This new body represents and supports the community of
dispute resolution practitioners and professionals, such as mediators.39 It offers
several vital functions related to mediation and other dispute resolutions, such as
providing high-quality mediation training and accreditation, promoting the use of
mediation to deal with business, workplaces, and families disputes. It also provides
up-to-date listing of mediators on its website for the public to source mediators.40

Many other professional dispute resolution organisations have started up. They
generally provide mediation services, training and accreditation. A very early
example is the Australian Commercial Dispute Centre (ACDC) formed in 1986 by a
group of lawyers, headed by Chief Justice of New South Wales, Sir Laurence Street.
The Federal and NSW governments gave financial support to this centre to establish
it as an international centre for commercial dispute resolution. This centre trains
lawyers as mediators,41 provides mediation services, and educates mediators and
potential users about commercial mediation services.42 Boulle and Field43 describe
this body as one of the first alternative dispute resolution providers in Australia.44 In

36
Alan Limbury, 'Recollections of LEADR's Beginnings' (2013) 24 Australasian Dispute
Resolution Journal 133-135.
37
Ibid 135.
38
See, James Duffy, 'LEADR and IAMA Become “Resolution Institute”' (2015) The Australian
Dispute Resolution Research Network.
39
Resolution Institute, 'About us') <https://www.resolution.institute/about-us/about>.
40
Ibid.
41
Joanna Kalowski, 'Mediation in Australia Through the cultural prism: mediation in Australia')
<http://www.jok.com.au/publications/mediation-in-australia>.1
42
See, Ashley Limbury, 'ADR in Australia' in A Ingen-Housz (ed), The ADR in Business:
Practice and Issues across Countries and Cultures (Wolters Kluwer, 2011).
43
Boulle and Field (n 32) 113.
44
Ibid.

135
 2010, the Centre was renamed as the Australian International Disputes Centre
(AIDC).45

In 1995, a significant body named the National Alternative Dispute Resolution

Advisory Council (NADRAC) was established as a result of the 1994 Access to
Justice Advisory Committee’s Report.46 NADRAC was an independent advisory
body for the government and was populated by senior figures in the mediation field.
It played a vital role in increasing the uptake of mediation in Australia. NADRAC
released many reports and, through conferences and other processes, engaged in
research. A significant report, ‘Resolve to Resolve’, released in 2009, recommended
that it was necessary to enact legislation that required all parties to take ‘genuine
steps’ to resolve disputes before commencing court proceedings.47

NADRAC also aimed to provide advice about the ‘development of high quality,
economical and efficient ways of resolving disputes without the need for a judicial
decision’.48 This body had a vital role in integrating DR processes in the Australia
legal system and the community. It improved awareness and acceptance of
alternative dispute resolution approaches to litigation through its research and
publications. This increased the Australian DR literature on topics such as definitions
of DR processes, issues of fairness and justice in DR, and the development of
standards for DR.49 However, in 2013, NADRAC was disbanded by the the Liberal
National government. Since then, a group of dispute management experts have
reformed a new body called the Australian Dispute Resolution Advisory Council
(ADRAC), to be linked with the heritage of the NADRAC. This organisation aims
to continue to explore, research and promote better dispute resolution in all areas of
disputes in Australia.50

45
The Australian Disputes Centre, Confidence in Alternative Dispute Resolution (March 2020)
<https://www.disputescentre.com.au/>.
46
A Strategic Framework for Access to Justice in the Federal Civil Justice System Access to
Justice Taskforce, (Attorney-General’s Department ('Access to Justice Taskforce Report').
47
National Alternative Dispute Resolution Advisory Council (NADRAC), 'The Resolve to Resolve
– Embracing ADR to Improve Access to Justice in the Federal Jurisdiction ' (2009)
<https://aija.org.au/wp content/uploads/2017/08/NADRAC.pdf>.
48
Ibid 607.
49
Boulle and Field (n 32) 109.
50
The Australian Dispute Resolution Advisory Council (ADRAC ), 'About us' (March 2020)
<https://www.adrac.org.au/>.

136
 These institutions and organisations have put Australia at the forefront of the
establishment of mediation as an accepted part of the legal landscape. As a result of
these achievements, court-mandated mediation has proliferated across Australia, and,
indeed, now occupies the position of Australia’s default dispute resolution
mechanism: mandatory mediation schemes.

5.2.2 Mediation Legislation

Australian legislatures adopted mediation after various bodies were promoting

and encouraging the use of this process as a cost-effective, confidential process that
can lessen the delays of justice in the courts, reduce disharmony, and maintain
relationships. For example, as a result of several recommendations that were
proposed by NADRAC to encourage greater use of DR in civil proceedings, the
Federal Parliament introduced the Civil Dispute Resolution Act 2011 (Cth). Under
this Act, a duty was imposed on lawyers to advise their clients about the benefits of
using mediation. This duty also imposes on lawyers an obligation to assist their
clients in resolving disputes via mediation, or other DR processes, before conducting
litigation in Federal Courts.51 Lawyers who fail to fulfil their obligation may be
ordered to pay costs from their own pocket.52

Lawyers play a crucial role in increasing the uptake of the mediation process in
Australia because they can provide advice to their clients about dispute resolution
options and their benefits.53 Sordo54 has highlighted the vital role for lawyers in the
mediation process as they can assess if a case is suitable for mediation or not. 55
Lawyers also play a role in preparing their clients for their sessions by helping them
understand their interests and enabling them to participate in the mediation.56 A
lawyer representing their client in the mediation process ‘should not engage in
aggressive adversarial behaviour that belongs in a court environment such as

51
The Civil Dispute Resolution Act 2011 (Cth) s 9 ('Civil Dispute Resolution Act ').)
52
Ibid s 12 (3).
53
Michael Redfern, 'Capturing the Magic – Preparation' (2004) 15 Australasian Dispute
Resolution Journal 119.
54
Bridget Sordo, 'The Lawyer's Role in Mediation' (1996) 7 Australian Dispute Resolution
Journal 20.
55
Ibid 23.
56
Ibid 25.

137
 antagonistic questioning or extreme positional bargaining.’57 The lawyers must focus
on their fundamental goal in the mediation process, which is obtaining the best
possible deal for their clients, but achieving it in a collaborative manner.

Furthermore, the Civil Dispute Resolution Act 2011 (Cth) requires the disputants
to file a statement to the court, known as a ‘genuine steps’ statement. This law directs
the disputants to attempt a resolution through processes such as mediation before
filing their initial court applications. Mediation is one of several processes that can
be considered as a genuine step prior to litigation to resolve the dispute, and if the
disputants have not taken any steps without any reasonable explanations, they may
suffer cost consequences.58 Under the Family Law Act 1975 (Cth), the disputants in
family disputes are required to attend mediation prior to filing parenting
proceedings,59 unless the case falls within one of the exceptions, such as issues of
family violence or urgency.60 In other words, the disputants could not reasonably
refuse to participate in mediation or other dispute resolution processes, as the court
will consider their objection to using one of these processes, which may then result
in an order to bear the costs. Thus, litigation is an option of last resort, and legislation
such as these examples, and many more legilstive enactments have assisted in
creating the thriving Australian experience of using DR processes.

At the state level, mediation has adopted initiatives around civil justice reform,
such as the Litigation Reform Commission in Queensland, which was established
following the Fitzgerald Enquiry.61 This commission made several
recommendations, such as the Courts in Queensland should have the power to require
litigants to attempt to settle their claims by DR processes.62 As a result of the
Commission’s work, the Courts Legislation Amendment Act 1995 (Qld) was
introduced, which provided for court-connected mediation and case appraisal in all
Queensland courts.63 The Uniform Civil Procedure Rules, introduced in 1999, aim to

57
Donna Cooper, 'The New Advocacy and the Emergence of Lawyer Representatives in ADR'
(2013) 24 Australasian Dispute Resolution Journal 178.
58
Civil Dispute Resolution Act, s 4.
59
The Family Law Act 1975 (Cth) ('The Family Law Act'). ) s 60I; Family Law Rules 2004 (Cth)
Sch 1 ('Family Law Rules ').
60
Family Law Rules, s 60I (9).
61
Boulle and Field (n 32) 104.
62
See, David Paratz, 'The History of Mediation in Queensland' (2015) 74 Hearsay: Journal of the
Bar Association of Queensland.
63
The Courts Legislation Amendment Act 1995 (Qld) (' Courts Legislation Amendment Act ').

138
 direct the disputants to mediation before gaining access to court hearings. This law
supports solving the real issues in civil proceedings with speed and efficiency, with
minimum cost, and without any delay in access to justice.64

In the Queensland jurisdiction, the Civil Proceedings Act 2011 (Qld)65 has
enacted similar referrals to mediation. This Act encourages mediation in all civil
disputes when the parties agree to use it.66 The court can also refer the dispute to
mediation on its own initiative, or based on the application of one party in the
dispute.67 If the court’s referral order is made, the disputants are required to attend
the mediation sessions, and work in good faith to solve the dispute. If one of the
disputants impedes the progress of mediation within the time allowed under the
referring order, the court can impose sanctions against this party. For example, the
judge will take into account the non-complying party’s actions when awarding
costs.68 Similar legislation can be found in all Australian state jurisdictions.69

5.2.3 Court Mandated Mediation

Mandatory mediation is widely established in Australia in two forms: court-

mandated mediation, and as a pre-litigation requirement. Court-mandated mediation
means that the judges have the authority to refer a case to mediation.70 It has become
a well-established mechanism in the Australian judicial system since the 2000s.71
Legislation around Australia has allowed the court to direct the registrar to give
written notice to the parties that their dispute is to be referred, by order, to mediation

64
Uniform Civil Procedure Rules 1999 (Qld) r 5 ('Uniform Civil Procedure Rules ').
65
The Civil Proceedings Act 2011 (Qld) div 3 (' Civil Proceedings Act ').)
66
Civil Proceedings Act s 42.
67
Civil Proceedings Act, s 43.
68
Civil Proceedings Act, s 44.
69
The Civil Procedure Act 2010 (Vic) s 48(2)(c) ('The Victorian Civil Procedure Act '); Supreme
Court (General Civil Procedure) Rules 2005 (Vic) O 50.07 ('Supreme Court (General Civil
Procedure) Rules '); The Supreme Court Act 1935 (WA) s 167 (1)(9)(i) ('The Supreme Court
Act '); The Supreme Court Act 1935 (SA) s 65 (1) ('The Supreme Court Act '); The Alternative
Dispute Resolution Act 2001 (Tas) s 5 (1) ('The Alternative Dispute Resolution Act '); The
Court Procedures Rules 2006 (ACT) reg 1179 ('The Court Procedures Rules '); The Local
Court Act 1989 (NT) s 16 ('The Local Court Act ').
70
Dorcas Quek, 'Mandatory Mediation: An Oxymoron-Examining the Feasibility of
Implementing a Court-Mandated Mediation Program' (2010) 11 Cardozo Journal of Conflict
Resolution 479, 481.
71
Robert French, 'Perspectives on Court Annexed Alternative Dispute Resolution ' (2009) Law
Council of Australia, 6; Magdalena McIntosh, 'A Step Forward – Mandatory Mediations'
(2003) 14 Australasian Dispute Resolution Journal 280; See e.g. Civil Procedure Act 2005
(NSW) s 26 (1) and (2) ('Civil Procedure Act ').

139
 and may do so with or without the consent of the parties concerned. Court-mandated
mediation can encourage the disputants to settle their dispute at an early stage, which
helps to save costs and time,72 and to preserve good business relationships between
the disputants.73

Another benefit of using court-mandated mediation is that where the disputants

cannot reach a settlement, they might succeed in narrowing the issues via
mediation.74 This means that when mediation does not settle the entire dispute, the
disputants will focus on the remaining issues at trial, which can still save costs and
time. Where mandatory mediation can settle the dispute at an earlier stage, this helps
the court to decrease the matters that are likely to reach trial. Thus, it may increase
the court's efficiency. This benefit could also be found if mediation is compulsory
before proceedings are commenced.

Despite the benefits, mandatory mediation is a controversial issue for several

reasons. Mandatory mediation may contradict the voluntary hallmark of mediation,
as discussed in chapter 1.75 The voluntariness is a vital hallmark in the mediation
process, as litigants can undertake this process without an outcome being imposed
on the parties, as occurs in litigation. When the disputants are forced into pursuing
mediation, this may potentially contribute to their unwillingness to solve their dispute
in a consensual and collaborative manner.76 However, this argument is easily
addressed as the settlement is still optional and the parties, who participate in good

72
But cf, Cameron Green, 'ADR: Where Did the ‘Alternative’go? Why Mediation Should not Be
a Mandatory Step in the Litigation Process' (2010) 12(3) Alternative Dispute Resolution
Bulletin 54-60.
73
Redfern (n 34) 54.
74
David Spencer, 'Mandatory Mediation and Neutral Evaluation: A Reality in New South Wales'
(2000) 11 Australian Dispute Resolution Journal 237; Paul Venus, 'Court Directed
Compulsory Mediation – Attendance or Participation?' (2004) 15 Australasian Dispute
Resolution Journal 29.
75
See, David Spencer, 'Looking Backwards to Move Forwards: Reviewing Sir Laurence Street’s
First Scholarly Contribution to the ADRJ' (2018) 29 Australasian Dispute Resolution Journal
90, 92; Iyla T. Davies and Gay R. Clarke, 'Mediation: When Is it Not an Appropriate Dispute
Resolution Process?' (1992) 2 Australian Dispute Resolution Journal 70, 72; Patricia Bergin,
'Mediation in Hong Kong: The Way Forward – Perspectives from Australia' (2008) 82
Australian Law Journal 196 203-204.
76
Andrew Robertson, 'Compulsion, Delegation and Disclosure – Changing Forces in Commercial
Mediation' (2006) 9 Alternative Dispute Resolution Bulletin 58; Brendan French, 'Dispute
Resolution in Australia – The Movement from Litigation to Mediation' (2007) 18 Australasian
Dispute Resolution Journal 213.

140
 faith in this process, are free to leave the mediation, albeit, of course, with a
reasonable explanation. 77

78
Ingleby argues that court-mandated mediation may threaten the rule of law
because the ‘the effect of compulsory mediation is to create rules against litigation,
to replace the habit of settlement in professionalised justice with a rule in favour of
settlement in incorporated justice.’79 It means that litigants will be considered as
components of the dispute, rather than treat them as individual bearers of rights,
which in turn ‘causes litigation to be seen as “deviant” as opposed to alternative
behaviour’.80 Mahoney responds to this claim, stating that mandatory mediation aims
to put an end to the main issues of the dispute by breaking down the disputants' rights
in order to reach a settlement.81 Litigation always remains an option available to the
disputants who are not satisfied by any possible options generated through mediation.

Redfern82 has noted that a benefit of court-mandated mediation is that disputants,

who may be reluctant to enter mediation, can become active participants when
forced. Smith83 explains this may happen because the disputants will not refer their
case to mediation voluntarily, as they consider it a sign of weakness. Still, when they
are required to use mediation, they will participate actively. In this case, the
disputants are free to make full use of the process of mediation to try to manage the
dispute in an informal way.

When a mandated mediation requirement exists, Sourdin84 has claimed that it

plays a vital role in saving time and costs, and it may achieve a better outcome.85

77
See, Tom Altobelli, 'NSW Supreme Court Makes Mediation Mandatory' (2000) 3 Alternative
Dispute Resolution Bulletin, 44; Gary Smith, 'Unwilling Actors: Why Voluntary Mediation
Works, Why Mandatory Mediation Might Not' (1998) 36(4) Osgoode Hall Law Journal 874,
848.
78
Richard Ingleby, 'Court Sponsored Mediation: The Case Against Mandatory Participation'
(1993) 56(3) The Modern Law Review 441-451, 450-451.
79
Ibid.
80
Ibid
81
Krista Mahoney, 'Mandatory Mediation: A Positive Development in Most Cases' (2014) 25
Australasian Dispute Resolution Journal 120, 122.
82
See, Michael Redfern, 'ADR: Where did the ‘Alternative’ Go? A Response' (2011) 12
Alternative Dispute Resolution Bulletin 90; Smith (n 77) 874.
83
Smith (n 77) 874.
84
Tania Sourdin, 'Civil Dispute Resolution Obligations: What is Reasonable?' (2012) 35(3)
University of New South Wales Law Journal 889-913, 892.
85
Ibid.

141
 Gerber and Mailman86 support this requirement as an important step before litigation,
because it represents ‘a philosophical shift in the way litigation is commenced and
conducted … by forcing parties to fully investigate the merits of their claims and
defences as a condition precedent to filing a lawsuit.’87 However, Ackland88 argues
that it may increase legal costs and lead to forced settlements, thus excluding lawyers
from exercising their important function in ensuring the observance of legal duties.89
Others suggest that imposing mediation as a pre-litigation requirement may
undermine the rule of law because not all disputes are suitable to be solved by this
process.90 Court-mandated mediation may not be suitable for all disputes. It would
seem there is an argument that the approach be nuanced and disputes not all treated
as the same. Black91 confirms that a compulsory referral to mediation could be
necessary in some disputes under particular circumstances.92 Olsson93adds that the
courts should not have a policy of ordering mediation in all circumstances, but that
they assess and screen the cases to find which disputes are suitable for mediation.94
Mahoney95 suggests two circumstances that indicate that referring to mediation is
appropriate:96 when an ongoing relationship between the disputants is desirable,97
and when there is unlikely to be any positive progress if the matter proceeds through
the court.98 Sourdin99 argues that the importance of these protocols are maintained
because alternatives have ‘been designed to support processes within and outside

86
Paula Gerber and Bevan Mailman, 'Construction litigation: Can we do it better' (2005) 31
Monash University Law Review 237, 238.
87
Ibid.
88
Richard Ackland, 'Mediation More Pork for Lawyers: News and Features', Sydney Morning
Herald (Sydney )11.
89
Michael Legg and Dorne Boniface, 'Pre-action Protocols in Australia' (2010) 20 Journal of
Judicial Administration 39, 39.
90
Tania Sourdin, 'A Broader View of Justice?' in Michael Legg (ed), The Future of Dispute
Resolution (Lexis Nexis, 2013) 155-166; Vicki Waye, 'Mandatory Mediation in Australia’s
Civil Justice System' (2016) 45(2-3) Common Law World Review 214-235, 227.
91
Michael Black, 'The Courts, Tribunals and ADR: Assisted Dispute Resolution in the Federal
Court of Australia'(7) Australian Dispute Resolution Journal 138.
92
Ibid 144.
93
See, L T Olsson, 'Mediation and the Courts: Inspiration or Desperation' (1996) 5(236) Journal
of Judicial Administration 237, 238.
94
See, Australian Competition & Consumer Commission v Collagen Aesthetics Australia Pty Ltd
(2002) FCA 1134 28 ('Australian Competition & Consumer Commission v Collagen Aesthetics
Australia Pty Ltd ').
95
Mahoney (n 81) 122.
96
Ibid 122-123.
97
See e.g., Hillig v Darkinjung Pty Ltd (2008) NSWSC 409 3 ('Hillig v Darkinjung Pty Ltd ').
98
See e.g., O’Connor v Australian Postal Corporation (2010) AATA 504 33 ('O’Connor v
Australian Postal Corporation ').
99
Sourdin, 'Civil Dispute Resolution Obligations: What is Reasonable?' (n 84) 892.

142
 courts and prevent the worst excesses of an adversarial system by requiring early and
transparent disclosure and thus limiting opportunities for a range of more adversarial
tactics.’100 This requirement generally succeeds in encouraging the parties to
‘participate in a genuine exchange whilst matters are still fresh and whilst a good
business relationship maintains.’101 Even though there may be a mandatory
requirement to attend mediation in Australia, the mediation is still ultimately
voluntary in nature. The disputants alone can determine whether they will settle their
dispute and the terms upon which they will manage the dispute.

The court-mandated approach may still follow a facilitative model more than an
evaluative one, as it helps the disputants take responsibility to create their own
solutions. Brown102 states that the goal of court mandate mediation may be achieved
when the mediator facilitates the discussion between the disputants, and takes an
interest-based approach to solving the dispute.103 However, a blended (facilitative
and evaluative) process is possible under the NMAS in Australia. The models
adopted in Australia is now explored.

5.2.4 Mediation Models

There are recognised different mediation models for the process in the
Australian literature. These attract different levels of expertise and corresponding
insurance coverage by the dispute practitioner. The most widely practised model of
mediation is facilitative mediation, as it concentrates on the disputants’ interests and
needs and maximises satisfaction of their own self-interests.104 Different models
were introduced and described in chapter 1. As noted, the National Mediator Practice
Standards (NMAS)105 have recognised that there are a range of different mediation
models in use across Australia. Even though the facilitative, settlement and

100
Ibid.
101
Michael Redfern, 'Should Pre-Litigation Mediation Be Mandated' (2012) 6 Australasian
Dispute Resolution Journal, 9.
102
Carole Brown, 'Facilitative Mediation: The Classic Approach Retains its Appeal' (2002)
Mediate.Com.
103
Ibid, 1.
104
Dorothy J Della Noce, Robert A Baruch Bush and Joseph P Folger, 'Clarifying the Theoretical
Underpinnings of Mediation: Implications for Practice and Policy' (2002) 3 Pepperdine
Dispute Resolution Law Journal 39.
105
Mediator Standards Board, Practice Standards 2007 s 1 (4) ('Mediator Standards Board,
Practice Standards ').

143
 evaluative mediation models are the most practised in Australia,106 the facilitative
model has been prioritised in the legislation and training of mediators,107 as well as
in community, neighborhood and family disputes.108 This model is considered as the
standard model of mediation, as mediators will traditionally adopt this model rather
than the evaluative model, which focuses on the parties' legal entitlements.109 The
facilitative model is preferable as it is most closely aligned with the philosophical
hallmarks of mediation, and addresses disputes 'through creative, mutual problem
solving, not just a process of settling cases in the shadow of the expected court
outcomes.'110 It also empowers the disputants to manage their own disputes, thereby
fulfilling the ideal of ensuring society becomes more harmonious in the longer
term.111

Facilitative mediation is defined as a process in which an independent third party

assists parties to identify the main issues in a dispute: to build a productive
conversation between them in a way that helps them to reach their own solution.112
As discussed in chapter 1, the facilitative model aims to focus on the disputants’
underlying needs and interests instead of the initial demands that are brought to the
mediation table.113 It also aims to discuss and negotiate the disputants’ substantive

106
Robin Amadei and Lillian Lehrburger, 'The World of Mediation: A Spectrum of Styles' (1996)
51(4) Dispute Resolution Journal 62-86.
107
Tania Sourdin, 'Mediation in the Supreme and County Courts of Victoria' (2009) Report
prepared for the Department of Justice, Victoria, Australia, 53.
108
Boulle (n 33) 45.
109
See, Tania Sourdin and Tania Matruglio, Evaluating Mediation-New South Wales Settlement
Scheme 2002 (La Trobe University, 2004).
110
Robert Baruch Bush, 'Staying in Orbit, or Breaking Free: The Relationship of Mediation to
The Courts Over Four Decades' (2008) 84 North Dakota Law Review 705, 721.
111
See e.g., Ryan Murphy and Tania Sourdin, 'Skilled Mediators and Workplace Bullying' (2019)
29 Australasian Dispute Resolution Journal 146; Mieke Brandon, '''I love you when, I love you
if, I love you because …'': Relationships Mediation' (2018) 29 Australasian Dispute Resolution
Journal 98; A J Orchard, 'Towards a Practical Model to Improve Outcome Acceptance in
Dispute Resolution' (2017) 28 Australasian Dispute Resolution Journal 181; Adele Carr,
'Broadening the Traditional Use of Mediation to Resolve Interlocutory Issues Arising in
Matters before the Courts' 27 Australasian Dispute Resolution Journal 10; Michael Redfern,
'The Mediation Challenge' (1998) 9 Australasian Dispute Resolution Journal 206; Clair
Berman-Robinson and Helen Shurven, 'ADR Process Design: Considerations for ADR
Practitioners and Party Advisors' (2016) 27 Australasian Dispute Resolution Journal 140;
Rebekah Doley, 'Working in ADR with disputants on the Autism Spectrum' (2016) 27
Australasian Dispute Resolution Journal 150.
112
Troy Peisley, 'Blended Mediation: Using Facilitative and Evaluative Approaches to
Commercial Disputes' (2012) 23 Australasian Dispute Resolution Journal 26.
113
Tania Sourdin, Alternative Dispute Resolution (Thomson Reuters, 5th ed, 2016) 77.

144
 goals, to lead each disputant to make concessions towards reaching a mutually
agreeable resolution.114

In contrast, evaluative mediation has been adopted widely in many mediation

contexts in Australia, and is usually encountered in commercial disputes and civil
claims.115 As O'Brien states, ‘evaluative mediation works within a legal framework
attempting to resolve disputes through agreements in line with results typically
achieved through litigated claims.’116 In this approach, an independent third party
assists parties through evaluating the main issues in the dispute to determine the
strengths and weaknesses of each side’s case, the possible outcome if the matter
proceeds to litigation, as well as proposing possible settlement scenarios to resolve
the dispute.117

Mediators may utilise this model by adopting an interventionalist and advisory

approach because they have expertise in the subject matter of the dispute.118
Evaluative mediation is not considered a preferred model because 'it does not
encourage creative, mutual problem-solving, but uses mediator influence to settle.'119
Others argue against this approach as it can potentially undermine an important
mediation hallmark, namely the parties’ self-determination.120 In other words, this

114
Ruth Charlton and Micheline Dewdney, The Mediator’s Handbook (Lawbook, 2nd ed, 2004)
45-47.
115
Boulle (n 33) 28.
116
Peter O'Brien, 'Solo Mediating Civil Claims' (2005) 16 Australasian Dispute Resolution
Journal 199, 203.
117
Peisley (n 112) 27; See eg, Donna Cooper, 'Representing Clients from Courtroom to Mediation
Settings: Switching Hats between Adversarial Advocacy and Dispute Resolution Advocacy'
(2014) 25 Australasian Dispute Resolution Journal 150; Kathy Douglas, 'The Importance of
Understanding Different Generations of ADR Practice for Legal Education' (2012) 23
Australasian Dispute Resolution Journal 157; Robert A Baruch Bush, 'Substituting Mediation
for Arbitration: The Growing Market for Evaluative Mediation, and What It Means for the
ADR Field' (2002) 3 Pepperdine Dispute Resolution Law Journal 111; Kathy Douglas, Robin
Loodman and Rebecca Leshinsky, 'Models of Mediation: Dispute Resolution Design Under the
Owners Corporation Act 2006 (Vic)' (2008) 19 Australasian Dispute Resolution Journal 95;
Jonathan Rothfield, 'What (I think) I Do as the Mediator' (2001) 12 Australasian Dispute
Resolution Journal 240.
118
Laurence Boulle, Mediation: Principles, Process, Practice (LexisNexis Butterworths, 2nd ed,
2005) 46.
119
Katherine Douglas, 'The Teaching of Alternative Dispute Resolution in Selected Australian
Law Schools: Towards Second Generation Practice and Pedagogy' (PhD Thesis, RMIT
University, 2012) 38.
120
Lela Love, 'The Top Ten Reasons Why Mediators Should Not Evaluate' (1996) 24 Florida
State University Law Review 937; Nancy A Welsh, 'The Thinning Vision of Shelf-
Determination in Court-Connected Mediation: The Inevitable Price of Institutionalization'
(2001) 6 Harvard Negotiation Law Review 1.

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 model disempowers the disputants in crafting their own solutions by transferring the
ultimate decision-making power away from them to the mediator. This happens
because the evaluative mediator will suggest an opinion of the likely outcome of the
dispute, and the risks they face if the parties prefer to litigate their dispute.

Also, as this model requires the mediator to evaluate the merits of the dispute
and provide suggestions as to its resolution, it may expose mediators to greater legal
liability.121 The evaluative model appears to present the most likely process that
would give rise to a duty of care in negligence. If a mediator uses his or her
substantive expertise to advise the parties erroneously on their likely range of legal
outcomes, then loss may be reasonably foreseeable.122 The disputants put their trust
in their mediator, and as Boulle123 notes, there is a risk as some mediators can be seen
to be in a position to ‘manipulate information, distort facts and suppress evidence,
and thus play a highly influential role in the process.’124 It is believed that the
mediator should proceed with a fair process by helping the disputing parties to
communicate, and by empowering them to reach an acceptable mutual solution.125
Legislation in Australia provides in many cases for the situation that no liability will
arise for the mediator if they act according to the accepted standards of mediation
practice.126
An understanding of these differences was embedded in the first National
Mediation Accreditation Scheme and Standards, issued in 2007, in which Practice
Standard no 2.2 stated that ‘[m]ediation is a process that promotes the self-
determination of participants…a mediator does not evaluate or advise on the merits
of, or determine the outcome of, disputes.’127 However, the 2015 renewed standards
recognised a change in how mediations are conducted, and so has enabled this by

121
Mary Anne Noone, 'Lawyers as Mediators: More Responsibility?' (2006) 17 Australasian
Dispute Resolution Journal 96, 97.
122
Melinda Shirley and Tina Cockburn, 'When Will a Mediator Operating outside the Protection
of Statutory Immunity Be Liable in Negligence' (2004) 32 University of Western Australia Law
Review 83, 90.
123
Laurence Boulle, 'Emerging Standards for Lawyer Mediators' (1993) 23 Queensland Law
Society Journal 575.
124
Ibid 579-580.
125
Anna Koo, 'Exploring Mediator Liability in Negligence' (2016) 45(2-3) Common Law World
Review 165-185, 181.
126
Civil Liability Act 2002 (NSW) s 50; Civil Liability Act 2003 (Qld) s 22; Civil Liability Act
1932 (SA) s 41;Civil Liability Act 2002 (Tas) s 22; Wrongs Act 1958 (Vic) s 59.
127
National Mediator Accreditation System (NMAS), the Practice Standards 2015 ('National
Mediator Accreditation Standards').

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 reference to a ‘blended approach’ in Practise Standard no. 10.2.128 This ‘blended’
approach ‘is not defined as mediation but as an amalgam of processes where the
consent of disputants is required.’129 In practice, a mediator may alternate between a
facilitative and an evaluative model to ensure an outcome is achieved.130 Spencer and
Hardy131 state that the blended approach in mediation is the preferred approach
because it takes the best of each.132 Thus, the mediator in Australia can move from a
facilitative to an evaluative continuum, which ‘is given in a manner that enhances the
principle of self-determination and provides that the participants request that such
advice be provided.’133 However, whereever a mediator engages in giving advice,
they open themselves up to legal challenges if the advice is inaccurate. This is why
care must be taken and a higher level of insurance coverage is reguired.

Suitably qualified mediators can apply the blended model after obtaining the
requisite consent of the parties. This model follows the traditional facilitative path,
with opening statements for mediators and parties, analysis of the issues and risks
relating to the dispute, exploration of interests and joint problem-solving. The
mediator commences by actively engaging in questioning the parties, framing the
issues, and brainstorming options, without proffering any suggestion on the possible
outcomes. The mediator will also conduct the private sessions to further probe
relative strengths and weaknesses and encourage the parties to propose solutions.
This usually includes further negotiations, either directly between the disputants or
through a shuttle process.134

In case the disputants do not agree, the mediator will move on to adopt a more
directive role to break an impasse between the disputants. In other words, the
mediator may give advice or an opinion about the likely outcome if the matter was
to go to litigation. The mediator may also propose a suggested settlement, to attempt
to bridge the gap between the parties. The mediator can negotiate with the parties in

128
Ibid.
129
Sourdin, (n 109) 53.
130
Boulle (n 5) 43.
131
David Spencer and Samantha Hardy, Dispute Resolution in Australia: Cases, Commentary and
Materials (Thomson Reuters, 2014) 156.
132
Ibid.
133
Peisley (n 112) 29.
134
Ibid 33; Chris Lenz, 'Is Evaluative Mediation the Preferred Model for Construction Law
Disputes?' (2015) Thomson Reuters 134, 145.

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 the form of a joint session, or alternatively by a shuttle process, to help parties find
an agreement.

5.3 Summary

This chapter has explored the mediation process as it has evolved in Australia.
Aboriginal and Torres Strait Islander communities in Australia had their customary
law for around 40,000 years in dealing with disputes.135 This, prototype of mediation
existed among the Indigenous people of Australia. The council of elders would
negotiate with the disputants to reach a solution that aimed to secure harmony in the
community.

The modern uptake of mediation has been introduced to provide a context for
the development of the implementation of mediation as a process, which is included
in the legal framework of Australia. Australian mediation has developed and has been
promoted through the coordinated actions of politicians creating legislation to
encourage its use, significant individuals and organisations and the courts. Mediation
may arise from a private arrangement between the parties, a legislative directive or
encouragement, or as a consequence of the court's direction.136 This chapter has also
focused on three of the mediation models that are used in Australia: the facilitative,
evaluative and blended process models. The pure facilitative model is the most
encouraged model used in Australia and has been addressed in detail in this chapter
and in chapter 1.

Australia has seen a sustained development in mediation practice, both in the

form of a bottom up community approach and of a a top down legislative-supported
approach. Organisations such as NADRAC have contributed significantly to its
development and the establishment of the NMAS has resulted in the development of
the profession of mediators.The next chapter moves to the findings from the
interviews in order to understand how well the system is working and what room for
improvements exists in both countries.

135
Croft (n 4) 6.
136
Bobette Wolski, 'On Mediation, Legal Representatives and Advocates' (2015) 38 University of
New South Wales Law Journal 5.

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 Chapter 6: The Interview Findings and Analysis

6.0 Introduction

Interviews were conducted with key figures who have practiced mediation in
Australia and Jordan. The interviewees were chosen based on their knowledge and
experience in the mediation process. They included lawyers, mediators, judges, and
academics. This chapter reports on the findings, from the interviewees' viewpoint, as
regards their understanding of the practice of mediation in their respective countries.
Key themes and issues are drawn from the interviews for further discussion and
analysis. The interviewees' comments regarding factors that may still need further
attention to successfully implement mediation in Jordan are attended to under nine
key themes: mediation definitional issues, the mediation spectrum, growth,
improvement, need for research, cultural considerations, mediator models, parties’
knowledge of the process, and mediation hallmarks and development. This chapter
provides a current snapshot, through the data collected, of the opportunities and
barriers for the progress of mediation in both countries. It reports on the qualitative
data and discusses the themes raised.1

6.1 The Interviews

A semi-structured interview instrument was used for each of the eleven

interviews to enable comparative consistency of the data collected. The semi-
structured approach, while allowing for this consistency, also allows some flexibility
for further information to be provided by interviewees should they wish to do so.
This creates an opportunity for previously unknown information to emerge,2 and to
gain a comprehensive and adequate understanding about the issues raised during the
interview. The questions used in the interview are set out in Appendix 1. Interviewees

1
See, Claire Anderson, 'Presenting and Evaluating Qualitative Research' (2010) 74(8) American
Journal of Pharmaceutical Education, 5.
2
Hanna Kallio et al, 'Systematic Methodological Review: Developing a Framework for a
Qualitative Semi‐Structured Interview Guide' (2016) 72(12) Journal of Advanced Nursing, 11-
12.

149
 are referred to by letter and number, to protect their anonymity, for instance, J1 for
an interviewee from Jordan and A1 and so on for Australian interviewees.

6.2 Research Context

In addressing the research problem reported in Chapter 1, this study has aimed
to clarify the obstacles and opportunities that face the process of mediation in
Australia, and to take learnings from this more developed practice to assist the
fledgling mediation practice in Jordan. The data provided by the interviews has
provided an immediate and practical response to the questions posed by the
researcher with regard to mediation development in both countries. This has enabled
a comparison to be made that has helped to determine different understandings and,
where there are opportunities for changes, to further improve mediation as a dispute
management process.

As described in chapter 4 and 5, Australia has a more advanced use of mediation

in its current legal system when compared with Jordan. As previously noted, the
Jordanian legislated mediation practice appears to follow an evaluative model. In
contrast, the facilitative model, along with some blended processes, are encouraged
in Australian practice. As described in this thesis, over the past decade, there have
been a variety of efforts to move mediation into the mainstream of the court dispute
handling system in Australia. The disputants are encouraged to use mediation
through the court-mandated approach, as well as through legislation to adopt a pre-
litigation mediation approach. Several factors have contributed to the development
of this process, such as institutions having encouraged its use, federal and state
legislation, and sustained research providing evidence to support the effectiveness of
the mediation process.3

On the other hand, even though Jordan has enacted legislation supporting
mediation for seventeen years, there has been no significant uptake by parties or

3
See, Laurence Boulle and Rachael Field, Australian Dispute Resolution : Law and Practice
(LexisNexis Butterworths, 2017) 104; Wendy Faulkes, 'The Modern Development of
Alternative Dispute Resolution in Australia' (1990) 1(2) Australian Dispute Resolution Journal
61-68, 61; Cameron Green, 'ADR: Where Did the ‘Alternative’go? Why Mediation Should not
Be a Mandatory Step in the Litigation Process' (2010) 12(3) Alternative Dispute Resolution
Bulletin 54-60, 54.

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 lawyers, nor any significant research supporting its usage. There are no training
programs for mediators and using this process depends highly on the parties’
acceptance. Little research has been aimed at evaluating the current mediation
system. Al-Qatawneh states even though there is a mediation department in all
Jordanian courts, it is not operating to its full potential,4 which is supported by the
interview data.

6.2.1 Mediation Definition

The interviews commenced with a preview of interviewees' understandings of

what is understood by the term ‘mediation’ and the concept of the process used. This
was an important starting point in order to gain knowledge on what the interviewees
understood by the term mediation, and to identify any nuances in how it was
described in the two countries. Generally, interviewees, when asked to clarify their
understanding of the term ‘mediation’, identified a similar basic outline of a process
that was common to both countries. However, on further analysis of the subtle choice
of wording, the data indicates that the Jordanian interviewees did not clarify the
mediator role in helping the parties achieve an agreement. In particular, was this role
inclusive of giving advice, or more just controlling the process and not the content?
This could also be seen in some of the Australian responses. All interviewees
identified the use of a neutral third party and the assistance by that party for the
disputants to reach an agreement. The Australian interviewees suggested mediation
as an alternative process to litigation to facilitate the discussion between the
disputants and put an end to their dispute, and some added that occurred without the
input or advice of the mediator. Comments include:

…Mediation is about parties coming together to be able to resolve their

concerns in a productive way without having to proceed down the
litigation pathway… (A2)

4
See, Tariq Hammouri, Dima Khleifat and Qais Mahafzah, 'Chapter 4: Jordan' in Nadja
Alexander (ed), Arbitration and Mediation in the Southern Mediterranean Countries (Kluwer
Law International 2007), 69; Mohammad Ahmad Al-Qatawneh, 'Mediation in Settlement the
Civil Disputes ' (LLM Thesis, Mutah University, 2008) 25.

151
 …Mediation is a process in which a mediator does not give advice but
clearly facilitates the communication and assists parties to come to a wise
decision... (A3)

…Mediation is a process in which a mediator facilitates communication

and negotiation between parties to assist them in reaching a voluntary
agreement regarding their dispute... (A4)

The Jordanian interviewees indicated a generally aligned understanding. Their

answers identified that mediation is a process in which a third-party facilitates an
effective negotiation between the disputants by bringing their views closer in order
to settle their problem peacefully with assistance from the third party. One
interviewee's comment supported the idea that the parties come to their own decisions
as part of party empowerment:

…Mediation is a process which is facilitated by a neutral and impartial

person, hopefully skilled in mediation, to work with the parties to help
them negotiate … in order for the two parties to reach their own decisions
…. (J1)

Three other interviewees were ambiguous as to how the third party assists the
disputants, leaving open the possibility of giving advice, as in an evaluative
mediation:

…Mediation is an informal means of resolving disputes between people …

a neutral person … helps the parties to resolve the dispute ... (J2)

It is a method of alternative dispute resolution conducted by a neutral third

party who … provides a forum to bring parties’ views together in an
attempt to reach an amicable solution…(J5)

Mediation is a method … that provides a forum for parties to the dispute,

to meet in dialogue and bring together views with the help of a neutral
person...(J6)

The interview responses from both countries indicate that mediation, when
described generally, can really encompass varied models of the actual process, and
such a broad understanding of the term can lead to misunderstandings by mediators
and the public about what mediation actually means as a process. The subtlety of just

152
 how the mediation is facilitated, and the role of the mediator and parties, was not
established by these general descriptions of mediation.

As described in chapter 1, mediation can offer a safe and supportive environment

in which the disputants can negotiate openly to explore their acceptable mutual
solutions in order to reach a consensus. That the interviewees’ understandings of the
term ‘mediation’ indicated a broad common understanding only suggests that further
work is needed to establish a more refined definition that explains the different
models, for the benefit of both the mediator and the parties involved. At the moment
it would appear that the term ‘mediation’ can be understood to include all forms of
decision making in which someone external to the dispute assists the disputants to
facilitate their decision making in various ways. However, mediation should not be
about imposing a decision on parties as this is for other forms of DR such as
arbitration.5

This research indicates that when defining mediation, it should always

encompass the model of mediation being addressed, so all are clearly distinguished
and not just included under the broad description, which can lead parties and
mediators towards uncertainty and misunderstandings as to the actual process they
are applying. This will thus encourage greater understanding by the practitioners and
the disputants as to what to expect when undertaking mediation. This is important as
the different models of mediation vary in significant ways and, depending on parties’
expectations, these may or may not be satisfied, which can potentially lead to giving
‘mediation’ a bad name. Furthermore, if a mediator gives advice, then they need
insurance to cover the risk of negligent advice, which is not applicable in facilitative
or therapeutic mediation where the mediator only controls the process and not the
outcome. Not having this refined understanding will influence mediation’s ability to
enhance the legal system and support the delivery of justice. An accurate
understanding of the process that will be utilised supports the rule of law requirement
of equal treatment, at least procedurally, and generally will assist the justice system
to step closer to delivering fair and appropriate outcomes for its disputants. However,
knowledge of mediation models, the importance of the mediation following a

5
See, Laurance Boulle and Nadja Alexander, Mediation Skills and Techniques (LexisNexis
Butterworths, 2 ed, 2012) 1.

153
particular model, and the parties’ awareness vary, as the next two sections establish.
This means that if mediation is to become more nuanced in its description, more work
needs to be done in both countries. The next section reveals the level of agreement
or disagreement among the interviewees concerning the importance of understanding
different models.

6.2.2 Mediation Models

The interviewees were asked whether they could describe their perspective of
their role in mediating disputes. This question sought insight into the level of
understanding of different models and what was considered the dominant style used
by mediators in the respective countries. It appeared from the Australian interviewees
that the facilitative style was preferred as the number one model: ‘...I really engage in
the facilitative model. And I think that is a very positive model...’ (A2). This interviewee
indicated that the hybridisation and personalisation of the manner of mediation was
strong in Australia. The interviewees further indicated that the model was often
adapted to the type of dispute or the context in which it was taking place. This was
also influenced by the disputants' ability to make their own decisions and the
mediator's experience:

If you believe people can make their own decisions, you are probably more
facilitative and if you’ve got a counselling background you maybe just add
a bit of therapeutic in your mediation style. (A1)

… the model that is taught is the facilitative model because it’s a good
model for training… However, the reality is different, each dispute has a
different scenario…A4

My style is what I bring to the mediation, what is my own experience, my

own commitment, my own passion for working for people in dispute…
People have to be very, very self-aware, self-critical regarding how they
fit in the mediation space and whether they can make a real difference to
people’s lives and help people to find the win/win solution. (A5)

One participant made a significant observation that having a preferred mediation

model is not essential because there is no model better than the rest, and the mediator

154
 should be free to offer different models in the mediation process. This interviewee
believed that discussing the different models was essential only for the mediator to
learn how to practice the process in order to extend their own understanding and to
improve and further develop their own practice:

I found the whole discussion about styles is not that useful. It is useful for
a mediator to look at different ways of practicing mediation. In my view,
mediators need to be free and need to be able to offer different styles...
None is better than the other… (A3)

Nevertheless, the same interviewee acknowledged that understanding what the

model is that one is using as mediator remained important, as regards advertising and
advising the party of the process:
… this discussion is important when the mediators have to inform their
client about the kind of service they offer and explain to the client what
that means and then follow that [model]… (A3)

Using different models in one mediation, while acknowledged, brought some

reservations. Interviewees believed that the mediator could use different models
when the parties could not reach their own solution, provided the parties were made
aware of the switching between models:

It depends on what framework you are using. If you believe people can
make their own decisions, you are probably more facilitative … and if
you’re an evaluative mediator, you need to say, I’m an experienced
builder so when I do this builder construction mediation, I can give you
some expert information. (A1)

… I think it’s important to have a mix if it’s necessary… (A2)

The mediators can bring several [models] in one mediation sometimes,

but they have to make the parties aware … (A5)

However, one Australian interviewee suggested that mixing different models in

the mediation process does not produce effective results because it needs an expert
mediator to do that:

155
 … mixing the different [models] doesn’t always work and it takes a fair
bit of experience to be able to use different styles. It’s about being quite
aware of where each approach or model fits. (A3)

Thus, it would appear Australian mediators were conscious of the different

models that could be used, and the significance of using one model over another.
While the facilitative model was the dominate approach, it appears mediators in
Australia like to be able to adapt the model they use to fit the actual dispute they are
mediating. Hence, there was a growing acknowledgment that mediators may be
utilising a hybrid model, including facilitative, settlement or evaluative aspects.
When this is the case, they were also aware of the importance of being clear to the
parties, which model they would follow, as liability for any negligent advice could
become a possibility if using the evaluative model. This is supported in the literature
discussed in chapter 5 when Peisley found that the mediator must make the disputents
aware that they are using the evaluative model.6

The interviews with Jordanian participants supported the observations in the

literature (Chapter 4), which found that the evaluative model was dominant in Jordan,
particularly for mediations conducted pursuant to the Mediation Act 2006. Al Saleeby
states that art 6 of this law gives the mediator the ability to evaluate the parties’ legal
status and to advise them of likely legal solutions.7 Interestingly however, in an exact
reversal of the move in Australia from facilitative to evaluative models, in Jordan it
appeared some mediators are preferencing first using a facilitative approach as they
were trained in using this model by the American Bar Association. The interview
results indicate these mediators will move to the more dominant evaluative model if
the facilitative model does not produce outcomes. This then is also a hybrid approach:

My role as a judicial mediator is evaluating the legal positions of the

parties but I would not have resorted to this style unless it was the last

6
Troy Peisley, 'Blended Mediation: Using Facilitative and Evaluative Approaches to
Commercial Disputes' (2012) 23 Australasian Dispute Resolution Journal 26, 29.
7
Bakr Abd-Fatah Al-Sarhan, 'Mediation on the Hands of the Mediator Judge: The Concept,
Importance and Procedures' (2009)(1) Jordanian Journal in Law and Political Science 57, 84;
Alsaleeby Basheer Alsaleeby, Alternative Disputes Resolution (Dar Wael Publishing and
Distribution 1ed, 2010)81; The art 6 of Mediation for Settlement the Civil Disputes Act 2006
states: ‘the mediator can take the appropriate measures to bring the disputants’ views closer in
order to reach a mutually accepted solution. The mediator can also, for this purpose, express
his or her opinion, evaluate the evidence, present the legal evidence, case law and other
procedures that facilitate the mediation.’

156
 choice. I will facilitate their communication, I will ask some question to
clarify their misunderstanding, I will help them to reach their own
solution. (J2)

… Many judge mediators in Jordan used to go directly to the parties and

tell them if your case goes to the court, it will be failed which is the
legislature adoption model but not me … because I prefer giving the
parties the opportunity to communicate and discuss their dispute, if they
cannot reach their own solution I will intervene …(J3)

The two schools (evaluative and facilitative …) exist in Jordan. The first
was introduced in the law and the last introduced in the courses that were
offered by the American Bar Association and Ministry of Justice for judges
and lawyers more than 10 years ago. (J5)

These observations indicate the preferable mediation model in Jordan. In the

beginning, 40 judges and lawyers were trained to use the facilitative mediation model
by the American Bar Association.8 However, the Jordanian legislation is worded in
an open manner that is conducive to the adoption of the evaluative style, which gives
the mediator a directive role in managing the disputants in order to solve their issues
and reach a solution.

The data contributes to a clearer understanding of how mediation is practised in

the two countries. It was largely found to support the observations in the literature.
Yet, a clearer and more nuanced understanding of how the professions see and
practice mediation within their respective countries is developed with this data. All
interviewees indicated that an experienced mediator could mix different models in
the one process as appropriate, and provided the disputants were willing. These
answers lead to asking the participants about the extent to which they felt it was
essential to explain the different models to the disputants.

8
Al-Qatawneh (n 4) 25.

157
 6.2.3 Parties’ Awareness of the Process

The participants were asked about their opinions on whether disputants should
be educated about the different mediation models that could be used in the process.
Three participants agreed that the disputants must be informed about the model or
models to be followed, in case the nature of the dispute required switching between
the models:

I believe the parties need to be informed about how you are going to do
the mediation, what your framework is and what the parties need to do to
prepare themselves for mediation. (A1)

I think it depends on the nature of the issues and the goals to be achieved
and the position of each of the parties. (A4)

I think it depends on the style that the mediator uses, for example, if the
mediator is facilitative, s/he does not need to explain his/her style. But if
s/he is an evaluative mediator, s/he has to disclose which model they are
using. (A5)

For two participants this was considered unimportant because the parties would
not pay attention to which model was used but rather, they would focus on the
mediation result:

… I don’t think they need to be necessarily aware of the [models]… (A2)

For someone untrained, it’s almost impossible to recall particular

mediator interventions. The parties remember if they got a good outcome
or a bad outcome… (A3)

In the Jordanian interviews, all participants concurred with the observations that
there was no need to make the disputants aware about the mediation models. Instead,
the disputants should be able to follow the mediation stages and were likely to be
more concerned with the mediator’s credibility:
I don’t think the parties probably need to be aware of the different
[models] because [they] are evolving constantly. (J1)

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 As a mediator, I need to be clear from the beginning about the mediation’s
procedures … but I don't believe that it is necessary to clarify the [model]
of mediation for the parties. (J2)

It is better not to be aware about the [model] or the method. By knowing

the method, [the party] will try to avoid reaching a settlement. (J3)

I think that there is no point in making the disputants aware of the

mediator [model], but the most important thing is making the disputants
aware of the stages of mediation. (J4)

It might be too early in Jordan to discuss this, to be quite honest. It might

be too early for us to consider this. (J5)

… there is no need to make the parties aware about the[models]. (J6)

This data indicates a clear distinction between the two countries. Some
Australian interviewees consider that using the mediation models will depend on the
type of dispute being addressed, including the possibility of switching between
models within a mediation. Notably, while some Australian participants did not
consider it so important, none of the Jordanian interviewees considered it to be
relevant. Perhaps fitting the Jordanian notion of a wise elder resolving a dispute, the
authority and credibility of the mediator was considered more significant. This leads
to gaining an understanding of where the interviewees see mediation fits in the broad
spectrum of dispute management processes considering Alexander’s meta model of
the mediation spectrum.

6.2.4 Mediation in the Spectrum of DR Processes

The interviewees were asked where they considered mediation sat in the
spectrum of available DR methods. This question aimed to determine the status of
mediation in both countries. The responses from the Australian participants show that
most shared the same view, namely that the place of mediation sits in the middle
range of available options. For instance, three Australian interviewees suggested:

It’s somewhere in the middle…(A1)

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 It is less interventionist than processes such a conciliation, or evaluative,
or expert mediation and then also certainly less interventionist than
processes like arbitration or litigation. So, it fits into a facilitative
communication focused way for resolving disputes. (A3)

I would have thought the bulk are resolved by negotiation and then the
next highest resolution process would be mediation … (A4)

In the Jordanian interviews, the descriptions provided a different understanding

from the Australia ones, and the interviewees indicated it was perceived as a
judicially supported process and as more formal in nature. One interviewee placed it
immediately after arbitration:

Mediation is the number two mechanism in Jordan ... The first mechanism
and the number one in Jordan … is arbitration. (J2)

One interviewee referred to judicial or court-mandated mediation, while only

one acknowledged there was a range from unstructured and informal processes to
more structured evaluative mediations:

Mediation, as it exists in Jordan, is mostly related to the judicial process

… relies on judicial referrals coming from cases that have existed in the
courtrooms ... (J5)

The spectrum ranges from unstructured, evaluative and informal

processes to structured, evaluative and increasingly formal processes,
depending on whether the parties are seeking a consensual dispute
resolution process ...(J6)

These statements show a perception that mediation was mostly considered to be

a facilitative process in Australia. By contrast, the Jordanian interviewees confirmed
that mediation ranged between traditional and formal means. These results are
supported by the literature described in Chapter 4 and 5, which confirmed that
mediation in Australia has adopted the facilitative model as the preferred model.
Sourdin states that the mediator assists the disputants in their attempt to identify the
issues and develop options that craft their own solution, without the mediator actually

160
 coming up with any options themselves for the parties.9 The facilitative mediators
will not advise the disputants about how they should solve their problem, nor provide
them with legal information about what a court would do in the case. Exon addresses
that the mediator uses communication techniques to help the parties express their
underlying interests in order to generate a wide array of options from which a creative
solution can then arise.10

In contrast, the Jordanian interviews confirmed that mediation was practised in

two forms: the formal and informal evaluative process of mediation. This result is
consistent with the literature investigated in chapter 4 in which Sulha is the traditional
process mainly practised by the Jordanian Bedouin people, and is identified as more
aligned with an arbitration process, but nevertheless classified as informal. Other
than this, the mainstream form of mediation is considered to be court-mandated or
formal mediation. Al-Rashdan confirms that the model generally used in this type of
mediation is the evaluative model of mediation.11 This leads to exploration in how
mediation has been perceived to have developed in acceptance.

6.2.5 Mediation Growth

Just how developed mediation has become as a process was a topic the
interviewees were asked to respond to, with a view to understanding how well
entrenched the process was or how it could become more so. The participants were
asked to describe the system of DR that existed when they first became involved and
to mention any changes, such as in legislation and practice, that they had witnessed
since that time. This question explored the history of the growth of dispute resolution
beyond litigation in both countries. It helped to indicate how important changes were

9
Tania Sourdin, 'Mediation in the Supreme and County Courts of Victoria' (2009) Report
prepared for the Department of Justice, Victoria, Australia, 53; Robert Baruch Bush, 'Staying
in Orbit, or Breaking Free: The Relationship of Mediation to The Courts Over Four Decades'
(2008) 84 North Dakota Law Review 705, 721.
10
Susan Nauss Exon, 'The Effects that Mediator Styles Impose on Neutrality and Impartiality
Requirements of Mediation' (2008) 42(3) University of San Francisco Law Review 577-620,
577.
11
See e.g. Ali Mahmoud Al-Rashdan, Mediation in Settlement the Disputes (Dar Al-Yazoury
Scientific for Publishing, 2016) 12; Doron Pely, 'Where East not Always Meets West:
Comparing the Sulha Process to Western‐Style Mediation and Arbitration' (2011) 28(4)
Conflict Resolution Quarterly 427-440, 430.

161
that had occurred over the years from the participants’ perspective. As described in
chapter 5, various factors have led to the growth and the development of the process
of mediation in Australia. From the Australian perspective, the interviewees
confirmed a number of significant changes that have supported the growth of the
process.

Comments by the interviewees according to themes ID

An early history of using mediation informally to a growing A1, A2, A4 and
professionalism A5
Mediation is becoming compulsory A2 and A5

Firstly, four participants described the status of mediation in the early days. One
participant stated that mediation practice was voluntarily, and mediation was not a
profession:

In the beginning of using mediation, it was voluntarily, and mediators

were very lowly paid, and mediation was not yet a profession. In the late
1990, early 2000, the mediators with a law background got $10,000 a year
more than the mediator with a social science background… (A1)

This interviewee spoke also about the development of a growing

professionalism, culminating in the adoption of qualifications to practice as a
mediator:

… Now, if a family mediator, you need to have either a social science or a

law degree and you need to have the National Standards and you need to
have training in family mediation plus 50 hours supervised practice to be
able to become an accredited mediator with the Attorney-General
Department, so the professionalism between the late 80s and now has
changed completely. (A1)

Another participant stated that some funding issues historically have led to a
different type of service, noting a change in those practicing mediations and the
impact of funding declines. Conducting co-mediation with a lawyer and other
professional has become the exception, with just one mediator from either profession
now generally being involved:

162
 When I started with Legal Aid, it was a co-mediation model with one
lawyer and social worker or psychologist. That has changed, because of
funding restrictions, so now there is … only one mediator. (A2)

The enormous changes that have occurred from the early days include the
growth of mediation contesting the space taken previously by processes such as
arbitration. This comment also flags a possible warning for mediation not to outprice
its usefulness:

When I first became involved, there was no system of mediation as we

know it. There was arbitration, but arbitration had got … more expensive
than the court process ... (A4)

One interviewee noted the expansion of mediation beyond the areas that had
seen an early uptake of mediation:

In the 90s, mediation had been operating throughout Australia in

particularly in family matters and also in environmental matters and some
workplace matters. (A5)

Compulsory mediation was addressed by two interviewees who noted that a

significant shift had occurred with this process becoming more emphasised, whether
as a pre-litigation procedure or court-mandated process:

The legislation has changed the mediation to become a compulsory step

before litigation and in commercial areas, there are almost always
agreements which provide for parties to engage in dispute resolution as a
means of resolving disputes. (A2)

… mediation becomes mandatory the judge can refer the case to

mediation. (A5)

Based on this interview analysis, several factors have informed the growth and
development of mediation in Australia. These largely confirm the discussion in
Chapter 5, namely that the mediation process was started as a voluntary process by
community centres.12 The mediation process has become more supported within the
legal system and has now moved to become a compulsory step before litigation

12
Faulkes (n 3) 61.

163
 around Australia.13 These interviews also showed that one of the essential factors
growing the adoption of mediation in Australia was that the mediator could not
practice this process without the required qualifications leading to a
professionalisation.

On the other hand, the Jordanian participants did not see significant changes,
perhaps reflecting its early stages in development. Two comments established this
reality and the impoverished state of mediation as a process in Jordan:

I do not believe there are significant changes happened in Jordan through

the years… I heard that mediation participation is in the lowest level in
Jordan. (J1)

The big and sole change that I witnessed through the years is the request
[for] arbitration is still number one … mediation [is] in second place…
judicial mediation is still prominent more than the private mediation. (J2)

While legislation exists to support the practice of mediation it has seen little
development with only two minor changes in the legislation occurring. Two
interviewees commented these changes were related to increasing the level of
mediation confidentiality and mediation encouragement by refunding fees. As two
interviewees confirmed, the changes in the legislation have been attempts at
increasing its uptake:

In 2017, we have a modification in our legislation where the court system

encourages the lawyers to use mediation by refunding the fees they
already paid to the courts when they settle their disputes through
mediation. (J3)

I don’t see a growth or a major growth in the cases of mediation. The law
was enacted in 2006, the first one, and …. They changed it only in 2017,
where they … increased the level of confidentiality in addition to giving
more appetite to this law by refunding full fees [if] you resolved your case
[within] a specific time of filling the case. (J4)

This result indicates the fledgling stage of mediation in Jordan and an entirely
different adoption process, which is shaped in a top-down legislatively imposed

13
See chapter 5, p. 138.

164
manner as opposed to the bottom-up grassroots development that has occurred over
time in Australia. As noted, there have not been any mediation centres in Jordan that
encouraged using this process as a grassroots movement. There was just the US
training of Judges and a sudden imposition of a legislated scheme. Furthermore, it
seems that arbitration has a greater standing than mediation in Jordan, as it is a
process that was introduced five years earlier than the legislated adoption of
mediation. It is also a process more closely aligned with the traditional Bedouin
‘mediation’, or Sulha, which may give arbitration an advantage:

…arbitration established in 2001… is number one in Jordan to solve the

commercial disputes, then in 2006 the mediation was introduced to solve
the civil dispute which is considered as number two in demand. (J5)

…arbitration is still number one and mediation is number two. (J6)

In the Jordanian interviews, four participants confirmed that training and

education were not supported enough, and that this was a significant factor required
to develop and improve mediators’ skills in Jordan. Two interviewees indicated that
the last training program was held ten years earlier by the American Bar Association:

I’m not aware of any training sessions that were meant for the special
mediators. But for the judicial mediators, their training sessions, and even
abroad were held before ten years, but now I heard there are no training
sessions held anymore. (J4)

When applying the law of mediation in 2006, there were 40 judges and
lawyers who were trained in America, after they return the process of
mediation was at the highest of its success as I heard, but after that, there
are no courses held, … I believe [that is] the main reason in decreasing
the demand for mediation in the last ten years. (J6)

The finding from the interviews that shows that Australia has a rich history in
using this process is supported by the review of Australian literature in chapter 5.
Chapter 4 did not find any growth to the DR sector in Jordan, and this was confirmed
by the interview data. Thus, the very different ways in which mediation has
developed in both countries appears to have had an impact on its uptake by both. In
Australia and Jordan, the interviewees identified areas for improvement, which are
canvassed in the next section.

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6.2.6 Room for Further Improvement

As a result of the previous question, I could not see any growth and significant
development of the dispute resolution sector in Jordan. Thus, I asked the interviewees
if they could wave a magic wand, what changes or adaptations they would create.
Australian interviewees were also asked to explore whether the mediation process in
Australia needed further development. After applying NVivo to the transcribed
interview data to determine the interviewees’ responses to this question, there
appeared to be varied suggestions for improvement. For the Australian interviewee’s
these have been grouped under three key headings, which are identified in the table:

Comments by the interviewees according to themes ID

Training program and education system A2, A3, A4,

A5

Professionalising and Supervision A1, A2

Public perception, satisfaction and participation A1, A2, A3,

A4, A5

Table 3: Headings related to the room for improvement of Mediation in Australia

While a training program is designed to help mediators to refine their skills and
become accredited to practice this process, a good education system can also develop
a clear understanding of the role of mediation as a dispute management process. In
chapter 4, it was confirmed that the training program and education system assist in
delivering a sound knowledge about the mediation process. If these programs are not
well-established in the country, it can have a negative impact on the uptake of
mediation. While strong mediation training programs are prevalent in Australia, four
interviewees still advocated there was need for greater rigor in training. This included
increasing the training hours for mediators to ensure mediators are competent to
practise the profession and reinforce the credibility of the process:

… more rigor with mediators having to undertake a significant number of

training hours …A2

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 Another participant confirmed there is always room for improvement as they
claimed there needs to be reconsideration of the structure of the training program and
education system to make the training both longer and more elaborate:

I think it’s time to probably rethink training and education in mediation,

to expand it because mediation has become a lot more complex. I think it
is worthwhile to actually rethink the whole training structure and to
possibly make it a lot longer and more elaborate. For example, require
more education and training for family mediators than civil mediators.
(A3)

Despite the fact that these programs are well established in Australia, another
participant suggested the programs should be expanded to educate the legal
community about the process, not only the mediator:

I support the education and training in mediation but not only for
mediators but also for lawyers, parties and students in the school to teach
them how to negotiate effectively because it may reflect to some extent on
the success of mediation. (A4)

The last comment on this theme indicated that law schools could improve their
offerings of courses for students to reinforce the range of skills that are needed by
mediators, particularly in multi-cultural disputes:

There needs to be even more education in law schools regarding the

nature of accepting different cultures… (A5)

The second theme that arose was professionalising the mediation process and
training. This is important especially since mediation has become more regulated and
mediators are trained and accredited. Part of this professionalisation is that mediators
should be treated as having formal, professional status. One interviewee suggested
that the mediator should garner respect as a professional, just like in other
professions. A suggested aspect of recognition is the offering of awards
acknowledging their contributions to society to encourage them to continue their vital
work:

Mediators must be treated as a professional. And they must be given

awards and they must be recognized by people as having wisdom…(A1)

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 Supervision of mediators was considered an important aspect to maintaining
standards and a professional ethos by ensuring that the mediator is working within
the policies and procedures of the organisation:

... the supervision of mediators needs to be quite stringent… A2

Public perception, satisfaction and participation was another area in which there
was an indication of still some room for improvement, even if one Australian
interviewee was reasonably content. Four participants in the interviews suggested
that the disputants’ satisfaction and participation were very high in Australia, which
in turn reflected the level of mediation development and acceptance:

Generally, mediation has been much more accepted, and it still has a very
high success rate in Australia, and I think the satisfaction levels with
practitioners that are supervised is improving over the years. (A1)

…The more the public is aware of mediation and aware of the

organizations conducting it, it can only be a positive thing and that can
only enhance satisfaction with the process and participation … (A2)

The participation and satisfaction are excellent in Australia because we

have people themselves ringing up saying they want to have a mediation.
Mediation is seen now as a desirable process and some people simply want
to be able to tell their story, they want to give themselves a chance to solve
their dispute without resorting to court. (A4)

…The community saying, we cannot afford the more traditional legal

system, we want something a bit more user-friendly, a bit less adversarial,
a bit more focused on a better outcome, that will not take us through the
courts for a long period of time, so that is a big cultural shift. Mediation
took thirty years for understanding and awareness and acceptance, which
is good. (A5)

However, one participant flagged a concern with a less optimistic view,

believing the streamlined mediation procedure had reflected negatively on the public
perception and satisfaction of participants:

I think public perception is actually kind of not necessarily becoming

better. I think it is actually slowly becoming worse and that is because of

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 a trend to shorten processes, to allow less time, to bring in more and more
legalistic processes, that’s definitely a trend that I recognised. (A3)

Thus, there were some divergent views regarding the improvements that were
hoped for in Australia to enhance mediation’s ability to solve disputes efficiently and
effectively. It should be noted, however, that Australia has thrived in applying this
process when compared to Jordan.

In the Jordanian interviews, all participants suggested important changes that

could assist with improving the adoption of mediation in Jordon. One question they
were asked sought to determine the key factors that could help Jordan to develop the
uptake of mediation. It was revealed in chapter 1 that mediation is an effective
alternative to litigation, due to its benefits, and that it is an effective means to ease
court backlogs. Moreover, chapter 4 clarified that the mediation process was
accepted culturally and religiously in the Jordanian community. One may expect that
these two factors would be enough to have contributed to mediation growth, but in
reality, it has not been enough. Thus, the interview findings identified several factors
that need to be adopted to contribute to its growth. The researcher applied NVivo to
the transcribed data and manually cross checked for clear headings:

Comments by the interviewees according to themes ID

Establishing a national centre for alternative solutions and J2, J4 and J5

mediation

Changing the minds of decision-makers and people J2, J4, J5

Activating the mediation process in all Jordanian courts and J2, J6

regulating the pre-action court procedure

Marketing the mediation process, public perception, J1, J3, J4, J5,
participation and satisfaction J6

Developing training programs and assessing mediation sessions J5 and J6

Table 4: Headings related to room for improvement in Mediation in Jordan

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 Firstly, the findings suggest that establishing a national centre for DR processes
in Jordan may be a motivational factor for increasing the uptake of mediation. The
interviewees indicated this centre could conduct training programs to raise
professionalism and develop mediators’ careers. The centre could also conduct
research that would aim to evaluate the process and provide evidence-based solutions
to issues it may face:

The existence of a national centre for alternative solutions and mediation

specifically will help to revive the role of private mediation, and will
encourage [potential mediators] to do necessary studies to improve this
process ... J2

… establishing an independent centre for mediation so that candidate

mediators can be relied on to be trained ... J4

… As long as we do not have actual active DR centres, we cannot have

mediation as part of the process of solving disputes. J5

The second category of three participants in the interview showed some

preference for the need to change the minds of decision-makers and people about the
mediation process. One interviewee indicated that decision-makers play an essential
role in enabling practitioners to practice mediation more effectively. Typical of this
is the following comment:

… change the minds of decision-makers... I would like to make them think

more in the direction of mediation, it is miserable ... if the decision-maker
does not give me as a mediator, the mechanism that will help me to
practice this process, my convictions about the importance of mediation
will just be convictions… J2

The need to change the Jordanian people's mindset was made clear if the uptake
of this process in Jordan is to expand:

… the people and lawyers’ need to change, not the law …[but] the attitude
towards mediation needs to be changed and to be well-established…
lawyers are worried about a loss of legal fees, or they see mediation is a
waste of time… J4

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 …change the mindsets for lawyer to make them encourage their clients to
resort to mediation as alternative solution ... J5

The third set of comments was around activating the mediation process in all
Jordanian courts and regulating the pre-action court procedure. A failing of the
mediation departments, which were established according to the Mediation Act in
each First instance court around the country, was that they had not been operating as
envisaged and this was seen as a definite issue:

… activating the role of mediation in all Jordanian courts not only Amman
courts (J2)

Related was one interviewee’s suggestion that the Jordanian legislature should
adopt mediation as a pre-action requirement:

Adopt the option to change the mediation law through making parties to
the dispute[be] required to present the dispute to mediation before
resorting to the court. (J6)

Improving public perception, participation and satisfaction in Jordan, which

appears currently to be at its lowest levels was indicated by four participants. Each
indicated room for improvement:

I believe that participation is decreased in Jordan which may reflect the

unsatisfaction (sic) in the mediation process. (J1)

The concept of mediation is extremely accepted among Jordanians, and

they like to do mediation. It’s part of our culture. Nevertheless, the
participation and the satisfaction and the perception is not that good,
because … the practitioners don’t promote it well. (J4)

Public perception, satisfaction and participation, still in Jordan are not that good... (J5)

Public satisfaction, I think, is in the lowest level … (J6)

Improved marketing of the mediation process in the broader community, in order

to raise awareness of the process among the people, was suggested as an essential
aspect of increasing the uptake of mediation in Jordan:

… It needs some marketing. If you will not encourage people to move to

mediation, they will not use it...’ (J3)

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 Only two interviewees indicated that the growth and development of mediation
in Jordan could be improved by imposing education and training programs on the
practitioners:

I believe that awareness of the parties about the importance of using

mediation and educating or training the practitioners periodically will
play an important role in increasing the ratio of participation in
mediation. (J5)

We need to TV programmes about the bright side of mediation to educate

the general audience. We need to educate the lawyer about this process
because most of them … do not know about this process and its
importance, they think or believe this process is wasting … their time. If
this is done, the process will …spread. (J6)

Another participant added that assessment after each session of meditation was
necessary to evaluate the weaknesses and strengths of this process and to measure
the parties’ satisfaction. This interviewee confirmed that no assessment had been
conducted in Jordan since 2008:

At the beginning of my work in the mediation department, there was an

assessment of our work in a mediation process. Also, there are statistics
that are hold related to parties’ satisfaction and rates of settlement by
American Bar Association between 2007-2008… We could determine the
points that parties are satisfied with and the points that were not. but now,
I do not believe there are new assessments, as much as I can say the
proportion of attendance of the parties to the mediation department is so
much decreased… A2

These findings demonstrate that mediation in both countries needs to improve.

For example, the findings from the Jordanian interviews showed that mediation was
not recognised as part of all Jordanian courts civil justice system. This is supported
by the literature review in chapter 4,14 and it can be explained by the absence of a
clear policy at the national level to raise awareness with the public about this process,
which also explains why court-mandated mediation is mainly concentrated in the

14
See e.g. Rula Al Alahmad, 'Mediation for Settling the Civil Disputes in the Jordanian Law'
(PhD Thesis, Amman Arab University for Postgraduate Studies, 2008) 44.

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 Amman First Instance courts.15 The Australian interviewee analysis confirmed that
regardless of the advanced state of mediation in Australia, it could still benefit from
changes around this process. Room for increased understanding of the mediation
process is clearly present in both countries. This was put to the interviewees in the
form of a question about the need for more research.

6.2.7 Need for Research

The participants were asked: ‘What do you consider the most critical areas for
which further research is needed?’ Practitioners were in a prime position to identify
what was working and what needed more development to assist them in their
practice. Therefore, this question sought to draw out aspects identified as requiring
more attention. In the Australian interviews, a range of concerns was uncovered, no
doubt reflective of the range of interviewees' practices. While diverse, they indicated
that there were no grounds for feeling that mediation in Australia was at its best or
fully matured, and development supported by research would always be required.

One interviewee identified two crucial aspects that would benefit from further
research. The first was evaluating the mediation system and its effectiveness in
cutting the cost of justice and easing the burden on the courts:

…the perception of policymakers that mediation and dispute resolution

are a panacea for ailing legal systems. And that they are an easy way to
cut costs. I think evaluating, and researching the existing systems that are
in place and their market effects is something that is quite critical for
Australia at this point… (A3)

This interviewee also believed that conducting comparative studies between

Western and other cultures could lead to improved understanding, by assessing
differences and similarities in theoretical underpinnings:

15
See e.g. Khaled Ta'amneh, 'Mediation as an Alternative Commercial Disputes Resolution in
Jordanian Law' (LLM Thesis, Jadara University, 2011) 57.

173
 I think it is also quite critical to better understand how western forms of
mediation overlap and where they differ from culturally different forms of
customary mediation and dispute resolution … (A3)

Another four areas identified as needing further research included focusing more
on the role of lawyer in this process, parties’ active listening, the quality of decision-
making, and family mediation. The interviewee’s comments included:

… studying the important role of lawyer in the process of mediation

because lawyers need to be diligent that where they think it may be
appropriate, refer people to mediation … A1

I think there needs to be a lot more research and involvement in active

listening and respecting the other party’s point of view. A2

I think … research in … better understanding of quality decision making

by the parties, and what supports are necessary to assist people to make a
quality decision. A4

Probably more research on mediation … for families to be able to move on

when they are in the middle of a dispute because it involves children’s
matters and children become in the middle with adult conflict. A5

In the Jordanian interviews some critical aspects needing more attention

included training and accreditation (five comments), private mediation (one
comment), parties’ satisfaction (one comment), and legal community convictions
(one comment). The majority of the interviews noted that the most critical aspect that
needed to be focused on by the researchers in Jordan was training and accreditation
processes. This is consistent with the literature review in chapter 4, which confirmed
that Jordan does not have any training program or accreditation system that ensures
raising awareness about this process or offering the candidate practitioners skills in
mediation as a dispute management process:

…research about the details and mechanisms of mediation to take its real
role that it deserves to occupy in Jordan. … (J2)

Research on educating the candidates how to be mediators, improving

their skills and explaining how to do the process step by step. J3

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 …the obstacle that needs to be covered in research is the practitioners and
how they use this tool… (J4)

… more research in the mediation techniques, the role of mediator and

about establishing guidelines for mediators. (J5)

… more research on how the mediator can practice the mediation …(J6)

Two participants also referred to private mediation, legal community convictions

and parties’ satisfaction. Their comments included:

… Further research to support private mediation. We need to activate its

role much more… the issue of the legal community's conviction especially
the community of lawyers… J2

… we need more statistics about the parties’ satisfaction to determine the

drawbacks and try to fix it… J6

As explained in chapter 4, the Jordanian legislature allows the disputants to

resort to the mediation process outside the court and to choose their private mediator.
However, there is no reported research available on this private practice of mediation
in Jordan. Another interviewee referred to the need to study the legal community’s
conviction, and lawyers’ reasons for resisting uptake of this process. Parties’
satisfaction, as established through statistical research, is minimal and further
research is required. Explained in chapter 4 when Ta’amneh confirms that the only
statistics available dealing with the satisfaction of the disputants was conducted in
2008. 16

These findings should be encouraging for future researchers as they present a

rich array of needs for future research. They also highlight current important needs
across the two countries and reflect some common concerns, such as the role of the
lawyer in mediation and the use of mediation techniques. They further reflect, as
perhaps one would expect, the different levels at which mediation practice is
advanced in both countries. Certainly, helping lawyers and mediators to understand
the process much better should improve their performance in this process and

16
See also, Ta’amneh (n 15) 56; Progress Report on the Progress of Court-Related Mediation
Program in Jordan between June 2007 - May 2008 Amman (American Judges and Lawyers
Association-Rule of Law Initiative, ('The Progress of Court-Related Mediation Program
Report').

175
 positively impact on its uptake, particularly in Jordan. One participant (A3) as noted
above reinforced the importance of this thesis in comparing the modern form of
mediation with customary mediation practices. This supports the next question that
aimed to determine culture differences and how these affected the adoption of
mediation.

6.2.8 Cultural Effects

As this thesis has reported, the early history of mediation in both countries was
rooted in the cultural practices of Indigenous communities.17 This is reflected in the
practice of bringing the disputed issues to respected members in the community.
Modern Australia is a multicultural country with nearly every culture in the world
having a presence. Over time, this brings many influences, however, all people in
Australia are subject to one system of law, under a rule of law, as described in Chapter
5. Jordanians are under the rule of law as well, but although it is a more homogeneous
culture, there are different religious elements and a degree of legal plurality in its
legal system. The interviewees were asked how culture may influence the operation
of mediation and how it was considered and addressed in mediations. Three
Australian interviewees stressed the importance of the mediator being aware of how
cultural differences of disputants should be considered in the mediation process:

… mediators have to be very careful that they are very respectful of

culture. A1

In a multicultural situation, it is very important to be aware of cultural

norms. And to respect them. A2

Mediation is always going to operate differently in different cultures. …

in China, mediators who were essentially people in the community who
acted as facilitators and then made a decision and the mediator has to tell
the parties how to solve their dispute. In Australia, mediators aren’t
supposed to tell people what to do. So, people have a different expectation

17
See further, Louise Fletcher, Mara Olekalns and Helen De Cieri, 'Cultural Differences in
Conflict Resolution: Individualism and Collectivism in the Asia-Pacific Region' Working
Paper No 2, The University of Melbourne, 1998, 1.

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 in different cultures. So, culture will always have a huge impact on how
mediation is perceived and conducted. A4

Another Australian interviewee believed that culture affects a disputant’s

convictions; but if they find that mediation provides benefits for them, they will be
adaptable to the dispute management process:

I think most people are very accepting, if they are given the opportunity
to do something that is less stressful, less emotional, less costly, the culture
will work with that… (A5)

A very interesting observation of the underlying influence of Christian beliefs,

in Australia, was expressed by one interviewee who referred to the logical rational
legal system, as influenced by Aristotle and other early Christian thinkers, according
to which emotion is to be sidelined.This is supported in chapter 3 when Cohen
confirmed this kind of culture is strongly influenced by Anglo-Saxon legal habits. 18
The interviewee suggested it brought with it a neoliberal worldview that was not
aligned with mediation’s hallmarks. This rational economic thinking impacts for
instance in Australia on the belief that marriage and other disputes, involving perhaps
many years of relationships, can be managed to agree a solution within one four-hour
mediation, by cutting out the emotions and reaching a rational solution:

… mediation in Australia is highly influenced by ideas of the Christian

confessional, by ideas of rational economic thinking, and cutting out
emotions or special types of knowledge and I think this goes hand-in-hand
with a culture of often sort of favoring neo-liberal approaches to economy
and community and the idea of mediation as a commercial service … (A3)

These observations provide insight into the historical impact of belief systems
that still carry influence today, such as in the neoliberal influence on how mediation
is conducted. They also recognise the need to consider culture as a specific element,
as it may influence the way parties engage, or not, in a mediation. It is therefore

18
See; Raymond Cohen, Negotiating Across Cultures: International Communication in an
Interdependent World (United States Institute for Peace Press, 2007) 31; Liu Qingxue,
'Understanding Different Cultural Patterns or Orientations between East and West' (2003) 9
Investigationes Linguisticae 22-30, 23.

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 important that the mediator considers the parties’ cultural standards and adopts
appropriate ways to reconcile these differences.

Jordanian interviewees’ responses were more aligned, as perhaps would be

expected in a more homogenous culture. Their responses supported the observations
in the earlier chapters of this thesis that the mediation process was deeply-rooted in
Jordanian culture, which made it more acceptable:

…The culture has a definite and important and critical influence on how
mediation is conducted locally. Specifically, in Jordan, we noticed a system
which followed Bedouin culture Wassata, which is the early tradition of
tribal chiefs handling family disputes or disputes within their tribes. For
how we set up mediation in Jordan was to honour and respect that tradition
by having Magistrates to be mediators. J1

Our society, our culture believes in settling disputes via mediation instead
of suit against each other in the court because it’s a bad thing to file a
lawsuit against someone. If you take it from a culture’s viewpoint or from
a religious viewpoint, they both lead you to use mediation as a tool to settle
disputes. J3

… in our cultural legacy, yes, the form of mediation exists strongly by

having tribal mediation or having even tribal judges solve and resolve
many of the …disputes in Jordan… J6

These are interesting observations given the exploration in Chapter 4, which

indicated the fundamental nature of a Bedouin ‘mediation’ as a process most aligned
with what is now understood as arbitration. The comments also support the adoption
of the evaluative style of mediation now used by the Courts. 19 One interviewee did
engage with this when observing that some practitioners did not understand the
differences between these concepts and the adversarial Bedouin style in solving
disputes, instead of facilitating dialogue between the disputants:

…the evaluative model is commonly adopted by judicial mediator in

Jordan as they are trained to give advice… I found a lot of confusion

19
John Wade, 'Evaluative Mediation-Elephants in the Room?')
<http://www.mediate.com/articles/wade-evaluative-mediation.cfm>.

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 between the modern concepts of mediation and tribal mediation … some
mediators misunderstood and mixed between these concepts… (J2)

As regards the importance of the mediator taking into account the cultural
differences between the disputants in order to assist them in reaching a mutually
acceptable solution, two Jordanian interviewees replicated the comments by the
Australian interviewees:

The mediator must be aware the party from the south of Jordan is different
from … the north of Jordan. … the mediator must be aware of the different
cultural background of each party to guarantee the success of this process.
(J4)

… the mediator has to be aware about the Jordanian culture, even

geographically speaking language, what you may freely discuss with
someone who lives in Amman might be something of a taboo to discuss
with someone who lives on the Bedouin side in the east of Jordan. (J5)

Consideration of the cultural differences between the disputants in Jordan was

narrowed down to regional differences, rather than consideration of multicultural
concerns. The observations that the mediation practice is firmly rooted in the
Jordanian community, as influenced by the Bedouin dispute resolution process, is
supported by the literature. Pely confirms that dispute resolution processes such as
Sulha, which show the disputants the path for putting an end to their dispute
peacefully, go back thousands of years in Jordan. 20 This may account for the ready
adoption of the wise person, a judge or lawyer, giving advice in an evaluative model
of mediation. 21 However, understanding the hallmarks of mediation and the benefits
of a facilitative approach is something Jordan could no doubt benefit from in order
to improve the uptake of mediation.

20
Doron Pely, 'Resolving Clan-Based Disputes using the Sulha, the Traditional Dispute
Resolution Process of the Middle East' (2008) 63(4) Dispute Resolution Journal 80, 86.
21
Alsaleeby (n 7) 5; Al-Rashdan (n 11) 10.

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6.3 Summary

The data from the interviews presented in this chapter generally provides
overwhelming support for the literature and observations reported in the earlier
chapters. Using a comparative lens, it flags issues in a number of areas that have not
previously been highlighted. This chapter has presented the findings from 11
interviews, discussed the findings in light of the observations presented in Chapters
1, 3, 4 and 5.

The first research question explored the interviewees’ understanding of the term
‘mediation’. The analysis of the interviews in this chapter indicated that a similar
basic understanding of mediation was typical in both countries. The participants in
the interview provided a broad understanding of the term, which could lead to
misunderstanding as to what the mediation actually means as a DR process. This
needs refinement to start addressing a clearer understanding of the different models
in order to educate the public, the parties, and the mediators and lawyers operating in
the field. Although not all interviewees would agree, it is clear that at the very least
the mediators and legal profession should have a clearer grasp of these differences.

The next two questions aimed to determine the use and adoption of different
mediation models and parties’ awareness of the models used. The interview analysis
confirmed that the facilitative and evaluative mediation models were followed in
both countries. These results indicated that using a blended process was not
uncommon but generally requires an expert mediator for the process to be managed
successfully. There was disagreement on the level of the disputants’ awareness of the
model followed. Some thought it was important for disputants to have clear
expectations of the process, while others thought it was less important, as they were
mostly just focused on getting an outcome, rather than on how they got there.

The position of mediation within the spectrum of available DR methods was

considered. The Australian interview results showed that this process fits into a
middle tier of processes as a facilitative communication focus for resolving disputes,
while the Jordanian findings confirmed that mediation ranges between informal
Bedouin type mediations to the more formal court mandated mediation, but behind
arbitration.
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 In regard to the history of the DR system in both countries, important changes
that have occurred over the years from the participants’ perspectives were revealed.
The analysis of the Australian interviews in the chapter indicates that there were three
key factors that contributed to the development of this phenomenon: mediation
becoming more compulsory, a growing professionalism as the role of the mediator
becomes professionalised, and mediation becoming an accepted part of the legal
system, such as being recognised as enforceable as a DR process in contract clauses.
The Jordanian findings concurred with the earlier discussion in the thesis, which
showed a lack of critical growth in the mediation process in this country.

The interviewees were asked what further improvements needed to be adopted

in the mediation process. The Australian interviewees suggested three improvements
that they hoped could be adopted in Australia: further professionalising the
mediation process, supervision of mediators, greater improvements in training
programs and the education system. The Jordanian interviewees suggested five
improvements that they hoped would be adopted in Jordan: establishing a national
centre, changing the minds of decision makers and citizens, activating this process in
all Jordanian courts, marketing the process, and legislating for mediation to be
adopted as a pre-court procedure.

Aspects identified as requiring more attention from researchers included from

the Australian interviews: evaluating the mediation system, comparing Western and
cultural forms of mediation, the role of lawyers, parties’ active listening, the quality
of decision-making, and family mediation. The analysis from the Jordanian
interviews indicate that there were four aspects that should be considered by
researchers: training and accreditation, private mediation, parties’ satisfaction, and
addressing the legal community’s conviction.

Culture in relation to progress of the mediation process in both countries was

considered. The Australian interviewees indicated that mediation has existed as a
concept followed by Indigenous cultures, but also that the Christian culture has
influenced a rational economic thinking in Australia. By contrast, the Jordanian
interviews confirmed that its mediation process was deeply rooted in the Jordanian

181
culture. However, when the legislature adopted this process, even though they were
impressed with the American experience in using the facilitative process, mediators
tended to adopt an evaluative style. To increase the uptake of mediation in Jordan, it
may be valuable to demonstrate to Jordanian citizens the mediation-rich history and
its tradition in Jordanian culture. This could occur through raising educational
awareness of reform measures, which could be implemented as a requirement of
government programs to encourage using mediation.

The interview data largely supported what the research in the earlier chapters
had flagged, but it also provided refined nuances to be considered. These are taken
up in Chapter 8 in addressing the recommendations. However, before that, the next
chapter separately analyses the data from the last interview question, which related
to mediation hallmarks, as these are key aspects in determining how mediation should
ideally operate.

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 Chapter 7: Mediations Hallmarks: in Australia and Jordan

7.0 Introduction

This chapter continues to report on the data relating to the interviewees’ opinions
on how well the hallmarks of mediation are observed. These hallmarks include
confidentiality, voluntariness, empowerment, impartiality, and parties providing
their own solutions. This is done separately in this chapter, as the hallmarks are the
foundational philosophy supporting the practice of mediation. They have been
outlined and discussed in Chapter 1. This chapter revisits each of these hallmarks in
light of the data obtained during the interviews, to see how well each is observed in
both Australia and Jordan. The observations are focused on the area of court-
mandated mediation and the different developments in Australia and Jordan. The
hallmarks provide a basis by which to measure the success of mediation in both
countries. The interviewees were asked to give their opinions on the observance of
these hallmarks: confidentiality, impartiality, voluntariness, and empowerment.

1. Confidentiality

Interviewees were asked to comment on how confidentiality was observed and

how important it was to the success of mediation. This question helped elicit any
obstacles to confidentiality in both countries. Two Australian findings are consistent
with the literature reviewed in chapter 1 which noted that protecting open and honest
discussions and disclosure can ensure the best opportunity for settlement.1 The
interviewees describe confidentiality as an essential pillar in the mediation process
because the disputants can speak freely during the mediation session without fear of
disclosing their information:

1
See e.g. Vicki Vann, 'Confidentiality in Court-Sponsored Mediation: Disclosure at your own
Risk?' (1999) 10(3) Australian Dispute Resolution Journal 195-205; Michael Pryles,
'Mediation Confidentiality in Subsequent Proceedings' (Conference Paper, International
Congress and Convention Association (ICCA) Conference, 2004) quoted in Joe Harman,
'Mediation Confidentiality: Origins, Application and Exceptions and Practical Implications'
(2017 ) 28 Australasian Dispute Resolution Journal 106, 109; John Arthur, 'Confidentiality
and Privilege in Mediation' (2015) Australian Alternative Dispute Resolution Law Bulletin 91.

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 Confidentiality is really important. People are talking about very personal
matters and they need to have the confidence that what is said in the room
will stay in the room and won’t be dissipated out into the community, so I
think that is really critical and I think it is reassuring for parties to be told
once again that the process is confidential. (A2)

This hallmark is important, and it comes with occasional exceptions. For

example, if somebody is at risk or property is at risk, a mediator has to let
the parties know that there are some exceptions to confidentiality. (A5)

Participants also confirmed, however, that there was a need to examine and
clarify the operation of confidentiality within the mediation process. They believed
that not all aspects needed to be confidential as this could work against the disputants’
best interests in some circumstances:

Confidentiality is a very misunderstood guideline. Because people

sometimes say that no one is allowed to talk about mediation … I think it
needs to be identified what part is confidential and what aspects of
confidentiality don’t fit with the outcome of the mediation. (A1)

I [have] a fair bit of problems with the idea of confidentiality because

confidentiality is used very often in settlement agreements to stifle any kind
of public discussion of issues. So, I think we really need to rethink
confidentiality or at least rethink the types of disputes that go to a
confidential mediation. Confidentiality should be discussed with the
parties as part of the mediation, but they shouldn’t be forced contractually
or legally to keep matters confidential. This is actually against their best
interests. (A3)

This interviewee suggested the law that governs confidentiality needs to change
and stated that this hallmark should be refined, especially in court-mandated
mediations:

… their needs to be a rethink of confidentiality and also a reworking of the

laws governing confidentiality at the moment. In a time of mandated court-
related compulsory mediation, confidentiality actually creates a space in
which mediator performance cannot be properly assessed and managed.
…A3

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 Among the Jordanian interviewees, three participants confirmed that this
hallmark was a core element in the mediation process, and that it was secured by the
Mediation Act:

Confidentiality is strictly enforced in Jordan; the mediator cannot come

out and talk about anything that happened in the session or talk about any
subject that was discussed within the framework of mediation… (J2)

One of the most important things in mediation is confidentiality. The

mediator will keep any information that [arises] in this process
confidential, and it is assured in Jordan by the law. (J3)

The law specifically states that all procedures of the mediations are
confidential, and they cannot be used and relied upon. (J4)

Two participants believed that this hallmark was not seen as a concern in Jordan
because the mediation process was recently adopted, and there are no cases to suggest
that this hallmark was an issue for parties:

Confidentiality is an important component in the mediation contract, but

it is not considered as an issue in Jordan because there are no cases that
give rise to this hallmark as an issue. (J5)

Jordan is a small country … confidentiality might not be, believe it or not,

a big concern in Jordan, as long as people do litigate and litigation
records are public, parties to a dispute are not so well or so deeply
concerned with confidentiality. (J6)

The data generally concurs with the literature (Chapter 1) in that confidentiality
is assured in Australia 2 and Jordan, 3 and that it is important to sustain the practice
for mediation. Interestingly, however, and perhaps because it is more advanced in
the practice, the analysis of the Australian interviews suggests that this hallmark
needs to be further refined and reconsidered. In terms of giving the disputants the
ability to decide whether it should be confidential or not, or whether to create
improved guidelines on what should be confidential leaving room for the parties to

2
Vann (n 1) 195; Pryles (n 1) quoted in Harman (1)109; Arthur (1) 91.
3
Basheer Alsaleeby, Alternative Disputes Resolution (Dar Wael Publishing and Distribution
1ed, 2010) 62; Ali Mahmoud Al-Rashdan, Mediation in Settlement the Disputes (Dar Al-
Yazoury Scientific for Publishing, 2016) 35.

185
 decide whether they wish to adopt a total confidentiality. Such an approach would
enable greater party empowerment. This is a refinement, suggesting that
confidentiality could be further developed as a hallmark and that more research in
this area may benefit the practice.

Jordanian interviewees suggested this hallmark was not considered to be a

significant issue, as the Jordanian experience in this field is still relatively recent, and
there was no case law on the issue. However, the Jordanian literature is perhaps more
advanced in picking up areas for concern over confidentiality. One researcher flagged
the requirement that the mediator submit a report to the judge about the disputants'
genuine efforts if the case does not resolve. In this case, the mediator can reveal some
information that could create a confidentiality issue, which must be considered by
the mediator and legislature, as it may discourage parties from thoroughly engaging
in the process.

2. Impartiality

The Australian answers about impartiality showed a range in points of views.

Two Australian participants indicated that impartiality was a critical hallmark in the
mediation process. These interviewees believed that this hallmark was a source of
quality assurance of a mediation. In other words, this hallmark served to ensure that
the parties felt confident with the process to reach their own solutions, which is
consistent with the literature in Chapter 1: 4

Impartiality, I think, is an extremely important part of this process to

ensure parties confidence in the process, as impartiality is a quality
assurance of a mediation... (A4)

As a mediator, I do not experience any problem with my impartiality... I

think it is very important to be impartial in terms of if there are separate
sessions if I say I’m going to spend ten minutes with the other party and I
need to spend more, to come back and explain that to the party waiting
and make sure that there’s equal time given. (A2)

4
See, David Spencer and Samantha Hardy, Dispute Resolution in Australia: Cases, Commentary
and Materials (Thomson Reuters, 2014) 42.

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 Two interviewees indicated that this hallmark was inapplicable because some
mediators have personal experience in the field of dispute, and they cannot be purely
neutral or impartial. Instead, in such evaluative mediation situations the mediator
should create a safe space to construct a healthy conversation with the disputants in
order to reach a satisfying result for both parties:

The mediator cannot be entirely impartial or entirely objective in some

area of disputes. For example, you are working in the family space and
you have been abused, you have been a victim of domestic violence, can
you really say you are totally impartial, some people would say Yes, other
people would say, No, we can’t work in that space, it’s too close, it is too
hurtful, we have been impacted too badly by our own experience and we
choose not to work in that area. (A5)

Not surprisingly, one interviewee suggested impartiality could never

truly exist. This certainly has generated a lot of literature, as the hallmark
initially required was neutrality.5 Over time, and after much debate in the
literature,6 the term has changed to impartiality in recognition that neutrality
was never really possible:

Impartiality. I don’t think it exists. Neither does neutrality. It is a social

construct. I’m interpreting this, and I believe that reality is socially
constructed by all of us. There is ample evidence in studies that have been
made of how mediators have shown bias, even though they weren’t aware
of it themselves. That is not to say that we should do away with the term
completely because it is also about creating a certain, I suppose,
expectation and framing of a dispute in a particular way that created a
kind of safe space for constructive conversation from parties, but they
shouldn’t be the kinds of pillars that they’re often being called. (A3)

Another interview preferred the term independent: ‘I like the word

independent instead of impartial. The mediator should inform the parties if

5
See eg, Neha Sharma, 'Mirror, Mirror on the Wall, Is there no Reality in Neutrality after all?
Re-Thinking ADR Practices for Indigenous Australians' (2014) 25 Australasian Dispute
Resolution Journal 231.
6
See, Susan Douglas, 'Mediator Neutrality: A Model for Understanding Practice' (PhD Thesis,
University of the Sunshine Coast 2009).

187
 s/he shows any bias, they can raise that because it is better than a complaint.’
(A1)

Overall, the Australian interviews support the literature review in chapter 1 in

relation to impartiality.7 That this hallmark has been debatable, as an unrealistic
demand to make on any human, raises the further question as to whether an impartial
approach is possible at all.8 Currently, the term impartial is considered as a realistic
possibility. However, as the interviewees noted in some cases, such as evaluative
mediation, the term impartial may not be useful.9 Furthermore, the view by
interviewees A3 and A4 confirmed that the practice challenged the reality of this
expectation, as humans also have unconscious bias, which makes it difficult to
achieve this perfection in reality.10 It would not be unreasonable for the suggestion
of the term ‘independent’ to be further investigated.

The findings from the Jordanian interviews showed varied opinions between the
participants. As discussed in chapter 4, the mediation process is practised by judicial
mediators.11 When a judge practises this process, it is seen to guarantees impartiality,
as a judge is highly trained in the concept because decisions must be unbiased.
Furthermore, interviewees noted that the parties could stop the process at any time,
if the mediator was considered not to be acting impartially. This sentiment was
shared by four interviewees:

Impartiality is completely guaranteed for two reasons ... The first reason,
mediation in Jordan is judicial mediation as a first point, who implement
this process, are mediator judges who can enhance the settlement... the
parties do not hesitate at all if they find the mediator not impartial and

7
See eg, Arthur Gorrie, 'Mediator Neutrality: High Ideal or Scared Cow?' (Conference Paper,
National Mediation Conference, 1995), 34-35.
8
Jonathan Crowe and Rachael Field, 'The Empty Idea of Mediator Impartiality' (2019) 29
Australasian Dispute Resolution Journal 273-280; Robert Bush and Sally Pope, 'Changing the
Quality of Conflict Interaction: The Principles and Practice of Transformative Mediation'
(2002) 3 Pepperdine Dispute Resolution Law Journal 67; Carol Izumi, 'Implicit Bias and the
Illusion of Mediator Neutrality' (2010) 34 Washington University Journal of Law and Policy
71; Bobette Wolski, 'Mediator Settlement Strategies: Winning Friends and Influencing People'
(2001) 12 Australasian Dispute Resolution Journal 248.
9
See, Crowe and Field (n 8) 273 ; Bush and Pope (n 8) 67 ; Izumi (n 8) 71; Wolski (n 8) 248.
10
Arthur Gorrie, 'Mediator Neutrality: High Ideal or Scared Cow?' (Conference Paper, National
Mediation Conference, 1995), 34-35.
11
Alsaleeby (n 3)62; Al-Rashdan (n 3)35.

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 they will stop the proceedings and submit complaints against the
mediator... (J2)

… it’s the parties’ role to choose a neutral mediator and if you have any
doubt about it, you stop the whole process. (J3)

Impartiality, it’s very important because of the judicial mediator, it’s very
difficult to assume that the judges are not impartial in their ruling… (J4)

However, one participant did not agree with these comments and believed quite
the contrary; that judicial mediation destroyed the impartiality as an essential
hallmark in the mediation process:

… if the parties in Jordan are conducting mediation by judicial settlement

conferences, in my view, that completely destroys impartiality... (J1)

One participant acknowledged that it was a difficult task to be impartial but felt
that the ultimate control was left to the parties themselves:

… it is difficult to be impartial, but the party can determine that, and then
stop the whole process if needed (J5).

An indication that impartiality is a challenging hallmark to observe in the pure

form was reflected by one comment:

It is difficult to achieve the pure form of impartiality in Jordan because

sometimes the party may know the mediator or have someone who knows
this mediator, which will be exploited negatively to press on the mediator
to be biased with him. It is a really big problem! (J6)

The Jordanian interviewees provided valuable insight into the notion of mediator
impartiality in that country because there is no research published that explores how
this hallmark operates in Jordan. Without the interviewees' responses, it is difficult
to assess how this hallmark is observed in Jordan. The findings from the interviews
confirmed that judicial mediation, being mediation that a judge has mandated under
the Mediation Law, was dominant and considered to be effective as regards
impartiality The interviewees suggested that the judicial mediator, because of their
judicial training, was associated with impartiality in judging, which in turn made it a
secured hallmark. The mediation process is voluntary in Jordan, which means the

189
 disputants can freely participate and freely leave.12 The interview data generally
supported this. However, the interviewee that indicated the very opposite, namely
that judicial mediation in Jordan could potentially destroy the value of this hallmark
may be a lone voice but should not be disregarded. This may happen because judges
tend to use adjudicative skills or directive styles to get the disputants to agree to a
settlement, and in such a situation, the impartiality is broken as the Judge is
effectively favouring the position of one party based on their interpretation of the
law. Still, this has to be considered in light of the cultural approach in a high context
culture (as discussed in chapter 4) in Jordan, with strong community ties, in which
members of the community must support each other as a form of mutual obligation
and respect their elders. In other words, the mediator is seen as an authoritative figure,
irrespective of whether they are a Judge and may influence the outcome through their
preferences and choices, rather than have the parties achieve their personal goals by
adopting a mutually acceptable solution. This raises subtle considerations for the
question of impartiality in an HCC.

3. Empowerment

The third hallmark covered in the interview data suggests that parties' self-
empowerment needs more encouragement in the mediation process, through
mediators consciously helping the disputants to reach their acceptable mutual
solution:

… mediators must encourage the clients to be self-determined, to find their

own solutions. (A1)

One Australian participant in the interviews provided an alternative view on the

use of mediation to empower parties. They noticed that there were many disputes that
did not need to be mediated, and in such cases, it could disempower parties. This
interviewee suggested that the reasons for this were the costs of the normal legal
system, which they suggested required much reconsideration and should be reformed
to reach better outcomes for disputants:

12
Khaled Ta'amneh, 'Mediation as an Alternative Commercial Disputes Resolution in Jordanian
Law' (LLM Thesis, Jadara University, 2011) 45.

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 Change the legal system ... and reform the introduction of regulations on
the court and legal costs could actually create better outcomes... I have
great problems with a legal system that completely over-pays judges,
lawyers and so everyone connected to the legal process and then tries to
overcome the incredible imbalances that this creates by sending disputes,
almost any type of dispute to mediation and it is used to disempower the
disputants. A3

Still, this interviewee readily acknowledged that the mediation process did
operate to empower the disputants to negotiate and to reach a mutually accepted
solution:

… the model that we practice and teach is improved into exploring a

relationship, assisting parties to communicate better with each other and
creating moments of recognition and empowerment between them. A3

All Australian participants supported parties’ empowerment as an important

hallmark in Australia’s medition development. This factor ensures the parties have
greater control over their dispute, including what they bring to the dispute, generating
options, and controlling the outcome.13 This hallmark is important as it allows the
parties to determine, create and develop their mutually satisfactory resolution and
thereby helping topreserve their future relationships.14 Thus, this hallmark has been
a strong aspect that has assisted the mediation process in becoming accepted as a DR
process in Australia.

The Jordanian interviewees also confirmed this hallmark as essential in

guaranteeing the success of the mediation process in Jordan. However, the research
in this thesis suggests that this hallmark is not properly in operation when the
evaluative model of mediation is adopted. Furthermore, one interviewee added that
Jordanians were unskilled in negotiation:

13
Albie Davis and Richard Salem, 'Dealing with Power Imbalances in the Mediation of
Interpersonal Disputes' (1984) Mediation Quarterly, 17.
14
Jacob Bercovitch and Scott S Gartner, 'Is there Method in the Madness of Mediation? Some
Lessons for Mediators from Quantitative Studies of Mediation' (2006) 32 International
Interactions 329.

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 … when this principle is secured by the law and when the disputants are
aware about this hallmark … it can increase the uptake of mediation in
Jordan… J2

… empowerment is an important principle in the mediation practice in

Jordan, however, adopting the determinative role for a mediator cancels
the activeness of this principle… J3

… the problem is that Jordanians do not know how to negotiate to reach

their own solution… I think it is important to make an awareness campaign
about the way of negotiating to help them apply this hallmark in the reality
… J5

These findings generally establish the importance of empowerment in both

countries. The Australian interview results were consistent with the literature review
in chapter 1, 15 in which this hallmark was established as an important for mediation.
By contrast, there is limited research examining this hallmark in Jordan. The findings
raise several issues that future research can address. The training of mediators in the
skills for interventions in the mediation process should focus attention on the capacity
of disputants to reach their own solutions. Generally, more education around the
mediation process and models could raise awareness of the Jordanian people about
negotiation principles, which could help them craft their own solutions and move
society in a mediational direction.

4. Voluntariness vs Court-mandated

Voluntariness is a clear hallmark philosophy underlying the practice of

mediation. The ways on which this aspect of voluntariness arises in court-mandated
mediation has attracted attention in the literature, and the interviewees were therefore
asked about their opinions of its importance and operation. As discussed in chapters
4 and 5, mediation in Australia is now encouraged, and in some cases mandatory,
whereas it remains optional in Jordan.

15
See eg, Bornali Borah, 'Being the Ladle in the Soup Pot: Working with the Dichotomy of
Neutrality and Empowerment in Mediation Practice' (2017) 28 Australasian Dispute
Resolution Journal 98.

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 One participant confirmed that mediation was still voluntary in Australia, even
in court-mandated mediation, because the disputants could stop the process at any
time, provided they could be seen to have made a genuine effort. Another interviewee
believed that court-mandated mediation did not contradict the voluntariness hallmark
and was necessary, because it provided the disputants with an opportunity to
communicate to solve their disputed issues in a shorter and more cost effective
manner:

I always think that mediation in Australia is voluntary because the parties

can walk out, but if they don’t participate in good faith or make a genuine
effort, they know that they will get this certificate that says they didn’t
make a genuine effort which means that the court can [order] costs against
them. …Court-ordered I think it is often very good because the judges
listen to them then says look, I’m ordering you to go to mediation and you
can walk out any time if it is not safe. At least they have an opportunity to
talk with each other rather than waiting three years for a result. (A1)

However, two participants believed that resorting to mediation had to be optional

for parties, even though the idea of court-mandated mediation was thriving:

A fine example in a reasonably narrow context shows that court-mandated

mediation is successful and can create agreements although there is still
research that is much in favor of voluntary mediation processes. Basically,
the culturally appropriate way that parties have been imposed [on in]
using litigation and then you come to force them to try something else!
(A3)

… a successful mediation occurs when people think [of] all possible

options and [consider]choosing to go to court as a better option, so they
shouldn’t be subject to pressure to return to mediation. (A4)

Chapter 4 identified that the judge in Jordan when referring a dispute to

mediation must take into account the consent of the parties where possible. This is
confirmed by the Jordanian interviews:

In Jordan, the mediation process is purely voluntary because the judge

cannot refer the case to the mediator without getting the parties
acceptance...J2

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 …we cannot go to mediation unless there is a case filed in the Court. The
court cannot enforce the parties to go mediation. It’s an option...J4

… the mediation in Jordan is still voluntary which is the pure nature of

mediation process, if we adopt another approach it will be against this
core. The parties have to participate voluntarily not compulsorily. (J6)

Three participants noted that voluntariness was a barrier that hindered the
progress of mediation in Jordan, and they suggested that the legislature should adopt
mandated mediation to activate and adequately refresh this process:

I wish …this process is mandatory because it will encourage the parties

to use this process. (J2)

The Jordanian legislature adopted the post-Court mediation, I wish… the

pre-Court mediation is adopted. (J4)

I wish… we have court mandated mediation, the process in Jordan is still

voluntary. Some parties believe that mediation … wastes … their time. I
believe if the legislature adopts the court mandated approach the
proportion of solving the dispute outside the court will increase. (J5)

The results indicate that the Australian mediation practice remains voluntary in
nature despite the fact it is mandated. In other words, the disputants can leave at any
time if they find this process is not effective in solving their dispute. On the other
hand, the Jordanian participants showed a desire for court-mandated mediation in
Jordan, without deferring to parties’ consent, as it could play an essential role in
helping the process grow. The Australian view is that court-mandated mediation does
not rule out voluntariness as a hallmark, given the parties’ ability to leave the
mediation. As discussed in chapter 4, the Mediation Act developed two forms of
court-mandated mediation: one permits the use of private mediators, while the other
is Judge-led mediation. In both forms, mediation requires the consent of the parties
and is required therefore definitely voluntary. Thus, the voluntary hallmark may in
fact be contributing to why court-mandated mediation has not achieved a significant
uptake. These results are in line with the information presented in chapters 4 and 5.
In light of these barriers, the interviewees were asked to add any suggestion they
could make around overcoming the obstacles to allow for a smoother implementation
of court-mandated mediation.

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7.1 Suggestions

The analysis of the Australian interviewees was concluded by the interviewees

being asked for suggestions about what they thought was essential for the
advancement and proper working of mediation as a DR mechanism in Australia,
which had not been covered in the prior questions prior.

One interviewee shared their belief about the need to shorten mediation procedures:

The waiting list to solve some disputes via using mediation takes more than
six weeks, it’s not okay because it disillusions people. I think the mediation
procedures need to be more streamlined. (A1)

Another interviewee did not concur, and believed that streamlining was not the
solution to improve this process, but suggested instead that changing the justice
system should be considered as a priority when trying to develop mediation as a
dispute resolution process:

I think mediation should and needs to be seen as a part of the justice system
and it’s not about how can we streamline this more and more and more
and make it cheaper and cheaper and cheaper. But it’s about whether it
actually does fulfil its purpose, and do we need to change the justice
system and not just try to change mediation. (A3)

Another participant suggested that establishing school programs about mediation

was necessary to make this process more acceptable:

I would just like to see much greater acceptance as it is a very valuable

tool out there in the community... I think that starts in our education system
and some schools are looking at introducing mediation styles and
programmes with children from a young age and I think that can only be
positive. (A2)

The last central point to emerge from the interviews related to continuing
training courses for students in universities:

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 I think continued training and education about the mediation process for
students at universities and for professionals, will help to improve this
process. (A4)

In the Jordanian interviews, the participants also suggested several factors that
could improve the mediation system if adopted. The first suggestion emerging from
the interviews was that the Jordanian legislature should revisit the use of the
evaluative model of mediation under the Mediation Act. This should be changed to
empower the parties to create their own decisions, as in a facilitative model:

I have read the new law in Jordan and I’m concerned that it takes the
decision away from the parties. If that’s the case, then it’s not mediation
because the parties making their own decisions is a core element in
mediation. (J1)

Encouraging researchers to study the barriers that may face this process in Jordan
is raised in one comment:

I hope that, as long as there are researchers who are interested in this
topic, and try to study it, to solve the problems that face this process it will
return the beauty and attention to this process… (J2)

Establishing marketing campaigns to promote mediation processes throughout

the country was identified as the most important factor to encourage a more
widespread use of mediation in jurisdictions other than Amman. Marketing would
assist in selling the idea to the public and to make them aware of mediation as another
means to resolve disputes other than through litigation:

It’s the most important thing is to market mediation more in Jordan and
to have more training and awareness of the importance of mediation. (J3)

One participant suggested it was important to adopt the mediation process as a

pre-court step and to establish a mediation centre. These factors were recognised as
key to developing the uptake of mediation:

I hope that we can enforce the mediation as a pre-court step, and to,
establish a regulated, respected centre for mediation so that parties can
consider going to mediation. (J4)

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 This was supported by another interviewee, who suggested that the government
taking the lead in providing the framework for mediation implementation was
essential. This requires factors such as the government sponsoring this process
financially:

You can’t have active mediation if the government does not support this
process to support its implementation. For example, support this process
financially… (J5)

The Jordanian interviewees recognised that the support of the government

through its policies and legislation was vital to ensure mediation had its place in the
civil justice system. The interview data suggested that mediation should be
mandatory in Jordan to make it more effective as an alternative to litigation. Chapter
4 showed that this approach was taken in Australia, and now mediation is an almost
ubiquitous concept. This thesis has found that the issue of mandating mediation is
vital if mediation uptake is to be increased. It was demonstrated from the literature
in chapter 5 that the Australian jurisdiction provides for mandated mediation and a
strong impetus for pre-court mediation, which can be very effective in promoting the
uptake of mediation. This is encouraged through adjustment in court costs and other
means. Thus, adopting these enticements for mediation can make people aware of
the usefulness of this process in solving their disputes.

Furthermore, when this process became a prerequisite to the court proceedings

in Australia, it changed the attitudes of the disputants and their lawyers to consider
mediation as an alternative to litigation.16 As presented in chapter 5, the
establishment of NADRAC in Australia was seen as an important development in the
implementation of DR. This institution was tasked with advising the federal Attorney
General on issues related to DR. The role of this institution gave the courts, the legal
profession and the public confidence that mediation was an appropriate way to
resolve disputes.

Part of the impetus behind increasing the uptake was also based on the
suggestion that private mediation should be encouraged, and that mediators should

16
Melissa Hanks, 'Perspectives on Mandatory Mediation' (2012) 35 University of New South
Wales Law Journal 929, 949.

197
be qualified, by offering training courses as an essential aspect of developing
mediation in Jordan:

As long as we focus on the change towards private mediation and we focus

on qualifying mediators from judges and other professionals, I believe that
this will definitely contribute to the development of the mediation idea all
in all and the general spectrum of mediation will definitely become wider.
(J6)

Training in dispute resolution alternatives also needs to be included in the law

school curriculum. It is hoped that in Jordan, with the right legal framework and
guidelines in place, and the adoption of some of these suggestions, that mediation’s
uptake may increase significantly.

7.2 Summary

The literature review in chapter 1, together with the interview data presented in
this chapter, suggested while hallmarks support mediation in the Australian and
Jordanian jurisdictions further consideration and refinement is possible for each
hallmark. The interview data and some of the literature contest just how well each of
the hallmarks have succeeded in achieving the claims, and how essential they are for
mediation. These hallmarks are confidentiality, empowerment, impartiality,
voluntariness and party choice. The interviewees addressed whether these were
observed or achieved in their country. The result indicates that the claims related to
these hallmarks are somewhat contested. In Australia, confidentiality needs more
attention, voluntariness in mandated mediations is considered to be satisfied by the
parties being able to withdraw, and impartiality remains a contested factor in terms
of whether it can ever really exist. In Jordan, voluntariness is a problem when it
comes to encouraging the adoption of mediation, and parties are not so empowered
if an evaluative model is followed and impartiality is contested. It is clear that much
work remains for researchers to investigate the claims of the hallmark philosophies,
and they should always be open to ways of improving on these.

Finally, some recommendations were proposed by the interviewees to enhance

the efficiency of court-mandated mediation in the civil justice systems in Australia
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and Jordan. A rather radical and significant suggestion from Australia was
implementing further changes in the justice system. This is ambitious and is likely to
occur only through small steps. However, the role of researchers is to investigate the
claims made by the justice system and propose better evidence-based research to
explore ways of achieving its goals. The Jordanian suggestions adopt much of the
learning from the processes already followed in Australia. These include providing
the public with information, creating awareness amongst the legal community,
training mediators, including training in law courses, and addressing the legal
framework to mandate mediation, particularly pre-court. Jordan’s biggest lag,
however, is the need to establish a national mediation centre to supervise many of
the suggestions made.

The next chapter draws together the main findings from this thesis, summarises
the key points drawn from both the literature and the qualitative interview data, and
makes some recommendations on ways to create a more successful and efficient
system of mediation in Jordan.

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 Chapter 8: Conclusion-Lessons for Improvement

8.0 Introduction

Through conducting a comparative study, this thesis has reviewed the existing
literature on mediation, with a focus on court-mandated mediation in Australia and
Jordan. The thesis followed a context-comparative approach. This required setting
the scene, in particular the legal-political structure including the courts, in the
respective legal systems of each country. This was done in the chapters that explored
the legal system and cultural aspects in each country (Chapters 3, 4 and 5). Many
similarities were uncovered in the two countries’ systems, as even though Jordan is
a unitary system of government and a civil law country, it is also a constitutional
monarchy. Australia is a constitutional monarchy with a common law legal system
that operates in a federal structure. Chapters 3, 4 and 5 provide the necessary
background in order to locate mediation’s place and role in each country’s dispute
resolution systems. Overall, both countries have the capability to incorporate
mediation into their legal systems, as they have to varying degrees.

Continuing the theme of a contextual comparison, the thesis has also explored
the historical Indigenous approaches to DR in both countries. Cultural aspects were
important to understand in this comparative study. Culture affects communication
and this in turn is significant for dispute management. To compare two countries
without considering their cultural differences, particularly when investigating DR
mechanisms, would be no comparison at all. This cultural contextual comparison
showed that the influence of Indigenous cultures was present in both countries. The
thesis addressed the models of DR and techniques adopted. Australian Aboriginal
and Torres Strait Islander peoples follow strict rules in a restorative justice approach,
which was not dissimilar to the Bedouin in Jordan. Both were found to have
influences reaching into the mainstream justice system in both countries. However,
it was useful to note that while the term ‘mediation’ is often used in relation to their
approaches to DR, when looked at closely, it had much more in common with the
arbitration process widely used today. Important differences in the manner and style

200
of communication were found. Australia is a low context culture that focuses more
on the individual’s needs and has a more adversarial confrontational style of
communication. In Jordan, a high context culture, respect for others is observed, in
particular elders and family, as community and collaboration are placed ahead of the
individual’s needs. These are vital communication considerations to take into
account when designing DR processes and when training mediators to work through
different models of mediation.

It was found in this thesis that Australia had advanced further along the
mediation road and provided something of a blueprint for the younger system in
Jordan. It also highlighted any pitfalls for Jordan to avoid. There have been
considerable developments in the sophistication of mediation methods and training
in Australia over time. How this has contributed to improvement in the adoption of
mediation and in disputant outcomes, by saving time, relationships and money, is
reported in this thesis.

Court-mandated mediation was only formally recognised in Jordan as a practice

in the civil justice system after the Mediation Act 2006. The Mediation Act formalised
the practice of judicial mediation through court-mandated mediation, which enabled
referral of cases to the mediation centre. This law clarified who could act as a
mediator, and how mediation would work in a loose framework with no designation
of a mediation model. As mediation had long existed in a traditional customary
manner in Jordan, there was hope that disputants may flock to mediation. In theory,
the Jordanian people hate to resort to the courts because of the time-consuming nature
of litigation and its cost, and because of the desire to put the community before the
individual’s needs. Jordanians therefore prefer to resort to informal methods of
problem-solving, such as Sulha, as described in chapter 4. Despite this logic,
Jordanians have yet to adopt mediation in the way it was hoped they would. This
thesis found this lack of enthusiasm a puzzle worth investigating. The outcomes of
the investigation are the recommendations reported below, which show ways in
which the Jordanian legislature might address the many issues that hinder greater
uptake of court-mandated mediation.

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 This chapter provides a summary of the research findings and an overview of
the conclusions and recommendations arising from this thesis. The specific research
problems engaged with are:

1. What are the current challenges that face mediation in Jordon?

2. Are there practices and learning from the more advanced Australian system that
could be adopted to enhance mediation practice within the Jordanian courts?
3. What recommendations can be made for the legal system and mediators in Jordan
to respond to these challenges?

The objectives of this thesis were to answer the research problems, which aimed
to trace and assess the current challenges that face mediation in Australia and Jordon.
The study investigated mediation in a country that provides an example of a
successful adoption of the practice. Yet, in doing so, it also looked at issues that may
still need to be addressed in Australia. The thesis then compared this with the
Jordanian experience and arrived at recommendations to overcome existing barriers
to its further implementation in Jordan. To answer the research problems, a
comparative contextual approach was taken that involved a detailed assessment of
each country’s legal structure and culture, the current literature on the topic in both
countries, and qualitative data from interviews. The contribution of this research,
particularly to court-mandated mediation, is addressed here with a recognition of the
limitations of this research and suggestions for future research.

8.1 The Barriers for Mediation

This thesis found that mediation in Australia still has some challenges. These are
highlighted in three areas. In relation to the research problem at least five key areas
were identified where Jordan could learn from the Australian experience in terms of
the challenges faced. From these recommendations have been drawn for Jordan.

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 8.1.1 Australia

Three key challenges have been presented, based on the literature and
comparative analysis aligned with the interview data from Australia. Interviewees,
in particular considered these as areas that could be investigated or improved to
further progress the practice of mediation. It was identified from the literature that
lawyers are still not aware of their actual role in the mediation process. Australian
law imposes a duty on lawyers to advise and assist their clients in resolving disputes
before conducting litigation in the Federal Courts of Australia.1 This legislation, the
Civil Dispute Resolution Act 2011 (Cth), can impose costs directly on lawyers who
fail to advise their clients about the opportunities to resolve their disputes by means
other than litigation. This is widely reported in the literature. Woodward is one who
has pointed out that lawyers prefer to frame the solution on rights-based terms,
instead of facilitating a discussion between parties that supports problem solving
DR.2

Law schools still resist core training of lawyers in DR processes such as

mediation, with a slow uptake of this training and even resistance to it,, which then
results in litigation remaining the dominant method of lawyer training.3 This result
confirms the critical role lawyers and lawyer training have in encouraging the
adoption of the mediation process, as discussed in chapter 5.4 The research literature
has been raising this concern for some time.5 However, without further imposition
from government and legal bodies to require training in the law schools, the issue

1
The Civil Dispute Resolution Act 2011 (Cth) s 9 ('The Civil Dispute Resolution Act ').50) s 9.
2
John Woodward, 'A Fly in the Mediation Ointment' (2019) The Australian Dispute Resolution
Research Network.
3
Pauline Collins ‘Resistance to the teaching of ADR in the Legal Academy’ (2015) 26
Australasian Dispute Resolution Journal 64.
4
See, Bridget Sordo, 'The Lawyer's Role in Mediation' (1996) 7 Australian Dispute Resolution
Journal 20; Michael Redfern, 'Capturing the Magic – Preparation' (2004) 15 Australasian
Dispute Resolution Journal 119; Donna Cooper, 'The New Advocacy and the Emergence of
Lawyer Representatives in ADR' (2013) 24 Australasian Dispute Resolution Journal 178;
Kathy Douglas and Becky Batagol, 'The Role of Lawyers in Mediation: Insights from
Mediators at Victoria's Civil and Administrative Tribunal' (2014) 40 Monash University Law
Review 758.
5
See further, Susan Douglas and Kathy Douglas, 'Re-imagining Legal Education: Mediation and
the Concept of Neutrality' (2014) 7(1) Journal of the Australasian Law Teachers Association
19-30; Kathy Douglas, 'The Evolution of Lawyers' Professional Identity: The Contribution of
ADR in Legal Education' (2013) 18 Deakin Law Review 315; Tania Sourdin, 'Not Teaching
ADR in Law Schools? Implications for Law Students, Clients and the ADR Field' (2012) 23
Australasian Dispute Resolution Journal 148.

203
 will remain. As a conservative profession, resistance persists among lawyers who
feel threatened by others entering into what they perceive as their domain of dispute
resolution.

Second, the hallmark philosophies have been used in this thesis as a measure to
gauge the success of the mediation process. The interviewees provided support in
addressing these. Confidentiality has become a standard term because it is seen as
crucial to enable the parties to freely speak. However, it was observed that such a
stringent requirement of confidentiality in all cases is perhaps not essential, and
parties may in some cases benefit from an agreed form of release of information. The
laws that govern this area do not allow opportunities for empowerment of the parties
to determine their position regarding confidentiality. While waivers of confidentiality
are an option under the law, this is not something many parties are readily aware of.
Such confidential protection of the process can also protect mediator behaviour,
which may work against exposing any abuse of the process by mediators. However,
the literature reviewed in chapter 1 has established that the Australian law and the
courts will open up the confidentiality of the mediation space, if fraud or other
unlawfulness is alleged to have occurred.6 This flags that confidentiality remains a
point of contention and is a complex area in which ongoing research can only assist
with the improvement and development of the relevant law.

Third is the hallmark of empowerment of parties, which is still somewhat

contested. For instance, one interviewee raised a challenge by suggesting that the
existing legal system in Australia needed reform. Interestingly, perhaps as a lawyer,
they suggested that mediation was not ideal in every case and did not always
empower the parties. Instead, they considered that reform in the Court system to cut
the costs of litigation, and the access to such a resolution, could improve the
efficiency by reducing matters that are delayed by going through mediation before
litigation, when there is no possibility it could be resolved other than by litigation.
Such voices from the literature and the interview data raise the prospect that a balance
should be observed. If governments push everyone into mediation, or paths other
than litigation, as a way to cut costs of delivering justice, then the system may become
unbalanced. One interviewee believed that the introduction of regulations for the

6
Laurance Boulle, Mediation Principles, Process, Practice (LexisNexis Butterworths, 3rd ed,
2011) 714.

204
court around legal costs could actually create better outcomes, by arguing that many
disputes do not really need to go to mediation. However, this view goes against much
of the literature, which suggests that even court-mandated mediations result in
reluctant parties being empowered by learning there is a new way to communicate,
and to resolve their disputes, without destroying relationships. The freedom always
remains for disputants to discontinue the mediation if it appears not to have worked
for them or to be appropriate, after a genuine attempt to engage is made.

Although Australia now has extensive training courses available post-law

degrees, as well as for non-lawyers, with a single system of accreditation, there is
still an identified need to rethink the training and education structure to ensure it
genuinely achieves a top-quality service for disputants. One interviewer suggested
training needed to be longer and more elaborate. Chapter 5 has described the bodies
that assure the NMAS are adopted in training, and these have played an essential role
in providing high-quality mediation training and accreditation. However, due to the
confidential nature of mediation, as covered above, there is possibly a greater need
for stringent supervision of mediators to ensure their performance is evaluated and
to maintain standards. They do operate in an isolated environment behind closed
doors and therefore, establishing that mediators do what is required of them to ensure
a procedural rule of law in which all are treated equally at minimum, could only
improve confidence in mediation. The NMAS have played an essential role in
providing high-quality mediation training and accreditation. This system does require
mediators to re-apply for accreditation every 2 years, to ensure an ongoing critical
review of their practice. Thus, these standards do produce reasonably high-quality
mediators. However, there is always an opportunity to improve the training and
accreditation requirements, in order to guarantee that parties are not exposed to any
form of bullying or other inappropriate behaviour by mediators.

This research confirms the development of mediation practise in Australia has

evolved to an advanced stage in which it is widely embraced as an accepted form of
dispute management. While more is always possible and some pockets of resistance
are essential to address, such as entrenched adversarial lawyering and conservative
legal academies, the level of deficiencies are categorised more as a need for fine-
tuning, than major changes. Nevertheless, the research has discovered there are

205
 opportunities for improvement which can inform the development of mediation in
Jordan.

8.1.2 Jordan

Mediation is not mandatory in Jordanian Courts. However, this thesis has

addressed the benefits from introducing pre-court incentives, or at least an attempt at
mediation, through a more mandated legislative approach. This can be a crucial
starting point in increasing the use of court-mandated mediation in Jordan.

It was supported by the Jordanian interviewees suggesting that mediation should

be mandatory for parties, and that they should be directed to mediation, whether or
not they had consented, as a potential driver to increase the demand on mediation in
the future. This is consistent with the literature reviewed in chapter 4, which
confirmed the necessity of adopting mandatory mediation in Jordan. Al-Rashdan has
suggested that adopting mandatory mediation in the Jordanian courts will increase
mediation uptake.7

The most significant obstacle identified was the lack of knowledge and
awareness of mediation, both amongst the public and lawyers. One of the
interviewees considered that lawyers’ resistance was the main factor operating
against mediation being adopted more frequently. Lawyers are either worried about
a loss of legal fees, or they see mediation as a waste of time. This reflects that a lack
of knowledge about, and experience in, mediation may be a reason for their
resistance. Even in Australia, it was noted that this is still an issue. Therefore, a
concerted effort, led by the Government and legislators, is needed to turn this around.

Certainly, the Jordanian legislature has supported the presence of private

mediators to be vital drivers for mediation, in order to resolve congestion in the court
system.8 Unfortunately, the private mediator’s role has not been supported by a
general awareness campaign to facilitate such an increase. Despite the legislative
support for private mediation, the interview results confirmed that judicially

7
Ali Mahmoud Al-Rashdan, Mediation in Settlement the Disputes (Dar Al-Yazoury Scientific
for Publishing, 2016) 80.
8
Mediation for settlement of the Civil Disputes Act 2006 (Jor) s 4(b) (' Jordanian Mediation
Act').

206
 mandated mediation, with parties’ consent has become the dominant form of
mediation used. Interviewees indicated that judicial mediation is favoured, as it
adopts an evaluative mediation model and disputants may feel that the judge’s
involvement enhances the likely settlement of the disputes. The mediator judge
adopts an advisory role to finalise the negotiation processes in order to reach
settlements. The literature in chapter 4 indicates that studies have found disputants in
Jordan to be more willing to mediate if the mediator is a judge.9 However, this result
may reflect some misunderstandings about the role of mediators and a misconception
of the concept of mediation itself. While culturally it was seen that Jordanians respect
their hierarchical elders’ authority and that this would suit a Judge in an evaluative
model, they have had less experience of the facilitative approach and the benefits it
can bring in terms of empowering the parties and providing them with
communication skills when in dispute. Jordan would benefit from more training and
legislative support for a facilitative model of mediation improving party
empowerment.

A further obstacle discovered in this thesis, particularly in the interview data,

was the lack of effective operation of a mediation department. It was reported that
mediation was unpopular among the disputants and lawyers, which in turn led to the
courts reconsidering their referral of cases to mediation.10 If the judges and the
decision-makers do not foster and encourage its usage, it will not flourish. No training
courses have been held in the last ten years. Legislative decision-makers could ensure
that consistent training was available in a facilitative or a blended mediation model
for both judge mediators and private mediators. This is particularly important when
it comes to practical models and communication skills desirable for mediation.
Adopting a blended process may be desirable for mediators and disputant’s
acceptance in Jordan, but the mediator needs to be a trained expert to understand the
different models and when and how to apply them.

In the matter of hallmarks, the issue of impartiality presents a different dilemma

than in cultures such as Australia. As Jordanian law has resulted in evaluative
mediation being the dominant model used in the courts, in allowing a directive

9
Al-Rashdan (n 7) 40.
10
Khaled Ta'amneh, 'Mediation as an Alternative Commercial Disputes Resolution in Jordanian
Law' (LLM Thesis, Jadara University, 2011) 50.

207
 advisory approach to get parties to agree to a settlement, the mediator's impartiality
may be questioned. This may then result in perceptions of bias and not help the
parties to reach truly productive interactions.11 Interviewees claimed that the
disputants’ power in determining their own outcomes could be taken away if the
mediator exercised this form of mediation. However, one of the interviewees was a
judge/ mediator, and they confirmed that they preferred to use a facilitative model as
first choice, even though most mediators in Jordan preferred using an evaluative
model. Lack of consistency and clarity around the model of mediation used and its
purpose does not help the progress of mediation in Jordan.

Significantly a lack of empirical research providing evidence and data showing

the rate of settlements and parties’ satisfaction in the last ten years was also raised by
the interviewees. Without feedback from the lawyers and the disputants, it is difficult
to measure the impact of the parties’ satisfaction with the court’s referral of their
cases to the mediation department. It is also difficult to determine the effectiveness
of the referrals, in terms of monitoring and supervising the cases referred to the
mediation department or returned to the court after a failed mediation.

Most significant for Jordan is the absence of a single institution or centre that
can take an effective lead to support the growth of mediation and provide appropriate
training services for mediators. The interviewees identified that the absence of such
centres have produced barriers in implementing a wider spread of mediation. For
example, these centres could work on creating an accreditation system much like the
NMAS in Australia, and thus support training centres and universities in establishing
training courses for mediators to improve their skills. These centres could also
support researchers and commission studies that focus on the parties’ satisfaction and
settlement rates, which would increase awareness and enthusiasm for using
mediation. Such a centre could foster mediation by holding seminars for lawyers and
advocating for its inclusion in law curricula. The interviewees confirmed that if the
lawyers are inexperienced in mediation, it is highly probable that they will not
encourage their clients to undertake mediation. This was confirmed in the literature
review in chapter 4. Alsaleeby stated that the government had not supported this type

11
Ellen Waldman, 'The Evaluative-Facilitative Debate in Mediation: Applying the Lens of
Therapeutic Jurisprudence' (1998) 82 Marquette Law Review 155, 160.

208
 of institution before but that it should now seriously consider this.12 The role of
government and organisations in promoting the use of mediation is a significant
contribution to its further uptake and this was a learning from the research findings
in this thesis..

In addressing the second research problem, which was how Jordan could benefit
from understanding what has worked in Australia, this research confirmed the key
factors of the success for court-mandated mediation in Australia, was the high level
of awareness about the benefits of mediation. This was a vital factor underpinning
the thriving practice of mediation in Australia. The research from Australia supports
the belief that mediation can be very effective as an alternative to litigation, and that
Jordan could benefit in the same way if mediation was mandated in similar ways as
in the Australian jurisdiction. Again, the role of government and organisations in
promoting the use of mediation is a significant contribution to its further uptake, as
the Australian experience shows. It was found that the Australian training and
accreditation system was advanced compared to Jordan, and that virtually no training
has occurred in Jordan since 2006. Thus, Jordan could learn much from the
Australian experience in establishing new training programs and an accreditation
system to improve mediation’s status.

8.1.3 Recommendations for Jordan

The findings from Jordan confirm that the mediation experience in Jordan is still
fledgling. The proposed recommendations will be helpful in considering ways the
mediation experience could become more successful. Together these factors are
likely to drive the interest of disputants, mediators and lawyers to use mediation, in
addition to litigation, to resolve disputes in civil cases.

Recommendation 1

Jordan should adopt a more mandated approach, (not reliant on party consent)
both pre- and post-court actions through legislation to increase the uptake of
mediation.

12
Basheer Alsaleeby, Alternative Disputes Resolution (Dar Wael Publishing and Distribution 1ed,
2010) 157; Al-Rashdan (n 1) 148.

209
 Recommendation 2

An independent mediation centre should be established to advance mediation

through supporting research and training, and through providing an accreditation
system for mediators.

Recommendation 3

The accreditation system and training programs must established

clear guidelines on mediation models, communication, mediator skills, and ethical
standards around impartiality and confidentiality, to ensure consistency in
mediation practices.

Recommendation 4

Significant efforts have to be undertaken to disseminate information about

mediation, its processes, and its effectiveness with the public, mediators, judges
and lawyers, in order to create an awareness of mediation, both private and court-
mandated.

Recommendation 5

Legal education at University level should include mandatory courses in different

DR processes.

8.2 Limitations of the Study and Suggestions for Future Research

While it is believed that this study makes a significant contribution to furthering

mediation practices in Jordan, it is not without its limitations. The most important
limitation of this study is the lack of public data and research published on mediation
in Jordan.

Secondly, as mediation developments are still modest in Jordan, some issues,

which were raised in the Australian literature, had not yet been experienced in the

210
 context of court-mandated mediation in Jordan, including mediators’ immunity and
liability, confidentiality, and mediation models and techniques. In contrast,
Australia’s experience is rich in using mediation. Notwithstanding, it was found that
future research in Australia needed to focus on issues such as: assessing the efficiency
of the mediation process, improving training and mediator skills, better
understanding the variety of mediation models, and re-evaluating the justice system-
its efficiency and cost.

The third possible limitation in this thesis is that the number of interviewees was
small. Nevertheless, they were representative of a cross-section of those involved at
senior levels in their country’s mediation practice. Further, qualitative research
supports the number of interviewees as valid as discussed in Chapter 2.13

Future investigations could address the extent to which mediation 1) addresses

the hallmark claims that underpin mediation. Are they settled and appropriate or do
they need more attention? This research has flagged more refinement is possible in
each of the key hallmarks of mediation; and 2) there is room for improvement in
Jordan in improving the experience of mediation, as lessons from Australia could be
usefully implemented.

8.3 Concluding Statement

In Australia, there has not only been a bottom-up grassroots development, which
was supported by key bodies such as IAMA, LEADR and NADRAC, and remains
supported by relevant organisation, but also a top-down support by governments
passing legislation that encourages of mediation. This has been further supported by
training and accreditation in a professionalisation process. However, this has not
been the case in Jordan, which has largely seen a top-down legislatively-imposed
adoption. The comparative study demonstrates how the Australian experience in
using DR could be adopted to improve the uptake of mediation in Jordan. Having
specific organisations and institutional support for the process of mediation will help

13
Michael Quinn Patton, 'Two Decades of Developments in Qualitative Inquiry: a Personal,
Experiential Perspective' (2002) 1(3) Qualitative Social Work 261-283; Michael Quinn Patton,
Utilization-Focused Evaluation (Sage publications, 2008).

211
develop and support its growth. It will also encourage the professionalisation,
through training of mediators, as more parties seek this manner of managing their
disputes. Australia therefore is as an excellent example to take learnings from, as part
of developing the emergent process of mediation in Jordan.

This chapter has answered the research problems raised in this thesis. The thesis
has mapped the growth and development of court-mandated mediation in Australia
and Jordan to investigate the key factors behind the success in Australia. It has also
identified areas where further improvement is possible in both countries. This has
enabled the researcher to propose recommendations to improve the success of
mediation in Jordan. This thesis has added to the growing body of Australian and
Jordanian literature on the main issues that hinder mediation’s progress, and it has
also filled a vital literature gap about these issues in Jordan.

This research identifies areas where it is clear there is a need for ongoing
research. Research should be conducted into parties’ satisfaction of mediation in
Jordan to provide baseline data, and future research should consider the impact of
adopting the recommendations of this thesis. The research in Jordan should assess
whether any changes have had an effect on parties’ satisfaction. Future research in
both countries could provide greater data on the role of lawyers in the mediation
process and in increasing its uptake. Research should also consider the perceptions
of the disputants when they participate in this process. Disputants’ satisfaction and
participation are considered as an indicator to measure the development of court-
mandated mediation. Thus, it will be essential for future research to interview
disputants in the mediation process to measure and determine the issues faced during
this process.

In terms of the impact of this thesis on more extensive mediation studies, it has
provided a comparative study on mediation practice in Australia, and it has contrasted
this with the fledgling practice in Jordan. The developments of court-mandated
mediation, as reported by Australian and Jordanian studies, along with the results
canvassed from the interviewees, have the potential to enhance these practices in both
Australia and Jordan. From a practical perspective, recommendations arising from
the study may also provide guidance to legislators, mediators and those whose ideals
seek to foster a collaborative approach to dispute management.

212
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The Investment Act 2014 (Jor)

243
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The New South Wales Constitution Act 1902 (NSW)
New South Wales Legislative Council, Parliamentary Debates 1980
The Northern Territory (Administration) Act 1910 (NT)
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The Personal Status Act 2010 (Jor)
The Retail Shop Leases Act 1994 (Qld)
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247
 APPENDICES

Appendix 1: The Semi-structured Interview Questions

1. To start - Can we clarify your understanding of the term ‘Mediation’? Can

you tell me in your own word what do you mean when you say ‘mediation’?
2. Where do you consider mediation fits in the spectrum of available Dispute
Resolution (DR) methods?
4. As a Judge; Mediator; Lawyer how often are you involved in mediating
matters?
5. How would you describe your involvement? Can you explain your role?
6. What do you consider the most critical areas for which further research is
needed?
7. Can you describe the system of DR that existed when you first became
involved and what changes in legislation and practice you have witnessed since that
time?
8. What do you see as the significant areas of growth and change in mediation
in that time?
9. Do you think there is room for further changes?
10. If you could wave a magic wand what changes or adaptations would you
create?
11. Do you think the culture has any impact on the way mediation is perceived
and conducted in this country?
12. Turning to some more specific matters for mediation. How do you see each
of the following evolving and influencing mediation?
a) confidentiality
b) impartiality
c) voluntariness v court-mandated mediation
d) Training and Education
e) regulation/ accreditation
f) public perceptions, satisfaction and participation?
13. Now some questions about your thoughts on the different styles of mediation
e.g. Facilitative, expert, settlement and therapeutic.

248
 a) Do you have any other styles you would like to mention and describe?
b) Do you consider it important to follow a particular style? Why/ why not?
c) What do you think of the idea that a mediator may follow something from
each of the different styles in one mediation?
d) what are your thoughts on how much parties should be aware of the different
styles.
14. Lastly is there anything further you would like to add that you think is
important for the advancement and proper working of mediation as a DR mechanism
in this country that has not been covered?

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 Appendices 2: An exemplar of the mediator’s decision in Jordan when the process has
failed

Case Number:
Mediation file number:
Mediator Name:

His Excellency the Magistrate judge of Amman,

On the basis of your decision dated .... in the case No. .... which includes the
referral of the dispute, subject of the case, to a settlement through mediation.
However, the parties of the dispute did not reach a settlement for several reasons:
1. ………
2. ……….
3. ………..
Despite the commitment of the parties to the dispute to attend all mediation
sessions. Accordingly, the case file was returned to you.

The date:
The mediator signature:

250
Appendices 3: An exemplar of the mediator’s decision in Jordan when the process is
successful.

Case number:
Mediation file number:
The mediator Name:
His Excellency the Magistrate Judge of Amman

Based on your decision issued on .... in the case No. .... which includes the
referral of the dispute, the subject of the lawsuit to settle through mediation. I have
held several mediation sessions attended by all parties to the dispute and their
representatives. Therefore, according to the provisions of Article 7/B of the
Mediation Law to settle of Civil Disputes, enclose the Settlement Agreement and the
Mediation File to ratify the Settlement Agreement.

The date:
The mediator signature:

251