Where people are in dispute with each other, a number of questions may arise about how they may seek to resolve it.

Should the party aggrieved invoke the process of the law, or can the parties seek to agree on a process of resolution that may be recognised by the law, but which depends for its operation  on agreement between the parties, rather than sanctions of the law?

If one party goes straight to law – by suing – the law has its own procedure. If the parties decide to resolve their dispute by agreement, they need to agree on what procedure they will follow, and if and how any resolution may be enforced at law.

The agreement to avoid going to law will stipulate the kind of process to be used to resolve the dispute – most usually, arbitration or mediation. 

The two are very different.  Mediation can only work when both sides co-operate in a good faith attempt to reach a settlement.  If that good faith is not there on both sides, there is no point in conducting a mediation.  (Which is one reason why judges should not order mediation – when the orders are often just something writ on water, that present another and expensive barrier between the parties and resolution of the dispute.)

The parties may also agree on the law to be applied and issues like rules of evidence, or powers to give directions on process like those in courts (relating, say, to the production of documents).  About forty years ago I was involved in a family dispute involving many properties and millions of dollars that no one wanted aired in court – the tax man would have been salivating – where we appointed Ron Castan, QC to sit under a palm tree, in private of course, and do what he thought was a fair thing.

The process of the law may I suppose be invoked to procure some form of alternative resolution, but if any such process turns on the readiness of the parties to co-operate, what is the point?

And if the parties seek a determination of the issues by the court, our process is adversarial, not inquisitorial.  The court is not there for  an inquiry into  some abstract truth, but to determine under its rules which version is preferable.  And the remedies are limited.  A judge may order completion of a contract for sale of land, but not the performance of an ongoing relationship.

And in some areas, the distinction between the two modes of hearing is blurred .  Most libel actions were heard by a jury.  Now the Federal Court hears them without a jury.  The trials can be hideously long and expensive.  They follow Chancery process.  Evidence is led in writing.  Discovery is ordered – feast days for lawyers and the Internet.  And the judge gives written reasons – often at great length.  The Roberts-Smith Case was like a Royal Commission – inquisitorial.

What I would like to know is how and when those issues were dealt with in the dispute between some players and Hawthorn and the AFL.

The AFL says no findings were made against the respondents.  That is not surprising since no allegations were put to them.  But where did anyone get the power to make any findings?

We know the players are aggrieved.  We also know that  those accused are aggrieved.  The difference is that we have not seen the complaints tested, but we do know how the respondents – like Messrs Clarkson and Fagan – have been treated.  In my view, they have been badly let down by all those involved in dealing with this dispute.

I can understand why both the complainants and respondents did not want these issues aired in court, but if after, say, a fortnight it was apparent that no agreement could be reached on an alternative, why was it allowed to drag on to the obvious distress of people on the other side?

The reports in The Saturday Age do not give grounds for optimism.  In a letter, the complainants  tout their satisfaction with the AFL statement, but say they will go to the Human Rights Commission for ‘conciliation to listen to truths they don’t want to hear…And if they still won’t listen, it will end up in the Federal Court, where we will tell our truths in the witness box. We told our truths in confidence, because we believe that it would bring change.  And because we needed to heal and move on.  That confidence was betrayed.’

To put it softly, that letter shows some difficulty in its authors’ coming to grips with the issues described above.  Enforced conciliation sounds like a contradiction in terms. 

Perhaps bad thinking is in the air.  There are two ironies.  Both sides complain that they have not been heard.  The First Nations people claim a right to be heard in the governance of the nation.  The Voice is a proposal for reconciliation.  Yet some in Canberra go on to a war footing to oppose such a move that appears so harmless.

And one of them had the gall to say ‘They’re a Weird Mob.’

AFL – Hawthorn – First Nations – Law – Mediation.