Against Settlement? Owen Fiss, ADR and Australian Discrimination Law
| Author | Dominique Allen |
| DOI | 10.1177/135822910901000403 |
| Published date | 01 December 2009 |
| Date | 01 December 2009 |
International Journal
of
Discrimination and the Law, 2009,
Vol.
10, p.
191
1358-2291/2009 $10
© 2009 A B Academic Publishers. Printed in Great Britain
AGAINST
SETTLEMENT?
OWEN
FISS,
ADR
AND
AUSTRALIAN
DISCRIMINATION
LAW
DOMINIQUE ALLEN
School
of
Law, Deakin University, Melbourne
ABSTRACT
191
In his celebrated article, Against Settlement, Owen Fiss objected to settlement
for,
among other things, securing the peace while not necessarily delivering justice and
denying the court the opportunity to interpret the
law.
Fiss sees settlement as a tech-
nique for streamlining court dockets, the civil equivalent
of
plea bargaining. This
article explores Fiss's criticisms through the lens
of
resolving discrimination
complaints in Australia.
It
argues that although it is valuable to offer complainants
a system for resolving complaints quickly and informally, especially in a jurisdic-
tion in which complainants are often from marginalised groups, it is also necessary
to recognise that this system is limited in how effectively it can develop the law
and, by extension, eradicate discrimination. In essence, the system's operation epit-
omises Fiss' opposition to settlement. Modifying the complaint resolution system
would improve this situation. The article concludes by proposing three reforms
based on mechanisms used in comparable countries: introducing direct access to
the court or tribunal; strengthening ADR by making it voluntary and incorporating
a 'rights-based' approach; and encouraging the regular publication
of
specific infor-
mation about settlements and significant cases.
INTRODUCTION
In his seminal article in 1984, Owen Fiss explained
why
he is against
settlement:
To
be
against settlement is only to suggest that
when
the parties settle,
society gets less than what appears, and for a price it does
not
know it is
paying. Parties
might
settle while leaving
justice
undone. (Fiss, 1984:
1085)
This article contends that Piss's concern has been realised in the devel-
opment
of
anti-discrimination law in Australia. The process
of
resolving
a discrimination complaint is as follows: a victim
of
discrimination is
required to lodge a complaint at the statutory Equality Commission
1 in
their jurisdiction.
If
the Commission accepts the complaint, it will attempt
to settle it, usually through a confidential conciliation process.
If
that is
unsuccessful, the complainant
may
then ask the Equality Commission to
refer the complaint to court2 for adjudication. The complaint may then
undergo court ordered mediation, which is also confidential, adding
another layer
of
secrecy to the process. Each year, very few discrimina-
tion cases reach the stage
of
a final hearing; the overwhelming majority
are settled or withdrawn prior to hearing. The result is that although
Australian law has prohibited discrimination for over 30 years, the body
of
case law remains small. Due to the confidential nature
of
the complaint
resolution process, other victims are limited in their ability to exercise
their rights.
After considering the process
of
resolving discrimination
complaints in Australia, Part I explores the benefits and drawbacks
of
using Alternative Dispute Resolution ("ADR") in this setting.
It
argues
that although it is valuable to offer parties a system to resolve the
complaint quickly and cost-effectively, especially in an area in which
complainants are often the most vulnerable members
of
society, it is also
necessary to recognise that this system is limited in facilitating legal
development and,
by
extension, eradicating discrimination. As Part II
explores, in essence, the system's operation epitomises Fiss's opposition
to settlement.
It
is not suggested that parties to discrimination complaints
should not be given the opportunity to resolve their complaint outside
of
a court hearing. The central thesis
of
this article is that the system typi-
fies Fiss 's concerns about settlement and for that reason, it should be
modified.
ADR
is incorporated in the revisions that this article proposes.
Introducing small changes to the enforcement model would improve
the situation. Part III considers mechanisms used in the United States
of
America, Britain, Northern Ireland and Ireland which would overcome
the identified limitations with the Australian model.
It
explores the bene-
fits
of
giving complainants direct access to courts and making
ADR
voluntary; the utility
of
changing the dispute resolution model so that it
is less focused on facilitating a settlement and more 'rights-based' and
focused on upholding both the victim's rights and the legislation's objec-
tives; and the advantages
of
requiring the Equality Commissions to
publish more information about settlements, thereby empowering future
complainants and deterring would-be respondents. This analysis also
draws on interviews conducted with scholars, lawyers and staff at the
Equality Commissions in those countries.3
I-
USING ADR TO SETTLE DISCRIMINATION COMPLAINTS IN
AUSTRALIA
The Process
of
Resolving a Discrimination Complaint
In Australia, discrimination is prohibited by federal law and by laws in
each State and Territory on a range
of
attributes, such as race, sex and
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