Literacy, numeracy and alternative dispute resolution

The difficulties experienced by users of adult dispute resolution in Australia are investigated in this report and processes that lead to difficulties are identified. The report offers suggestions for professional development and specific strategies for mediators to assist those who have limited literacy and numeracy.

• This study demonstrates that limited literacy and numeracy can be a barrier to fair participation in alternative dispute resolution processes, despite its being promoted as a fair and equitable process for all. It is likely therefore that participants in alternative dispute resolution who have limited literacy and numeracy are not achieving fair outcomes from these processes.
• Application forms for participation in the alternative dispute resolution process and some associated documentation require fluency at a level equal to at least a level IV certificate in the Australian Qualifications Framework.
• It is possible that individuals who have limited literacy and numeracy are not accessing alternative dispute resolution processes due to the literacy and numeracy demands of the forms and guidelines, and a general reluctance to engage with the law.
• Alternative dispute resolution practitioners need awareness training to enable them to identify potential literacy and numeracy difficulties in clients, especially as many adults will not willingly disclose such difficulties due to public embarrassment. To date this has not been a specific focus.

This study investigated the literacy and numeracy demands of alternative dispute resolution processes, with a particular focus on mediation. Alternative dispute resolution plays an increasingly significant role in the settlement of legal disputes, in both Australia and overseas. Parties involved in family disputes and small business or trade disputes are expected to settle differences by mediation. Parties in larger commercial or administrative disputes can be ordered to mediation by the courts, which will then not hear such cases unless alternative dispute resolution processes have failed to reach resolution. It is possible for alternative dispute resolution to involve only the mediator and the parties in dispute, that is, without support from legal representatives, family, friends etc.

This report provides a brief summary of the instances of mediation and associated processes from courts and tribunals in Australia. The summary shows that the number of instances is large, and is known to be increasing. This study is therefore timely in addressing an equity issue that may arise in alternative dispute resolution procedures.

Alternative dispute resolution processes are promoted as providing quick, inexpensive and fair outcomes for legal disputes. The adversarial nature of Australian court procedures requires a 'winner' and a 'loser'. Alternative dispute resolution aims to provide a 'win-win' solution and is promoted as a largely oral process, focusing on communication between parties. However, this system of dispute resolution does involve considerable paperwork to access the system, and ongoing written activities, numerical calculations and oral communication by the mediator and parties. It also requires prior documentation of the dispute. The paperwork, and the reading and writing explicitly and implicitly required were the focus for an examination of the literacy and numeracy demands of alternative dispute resolution.

Equity issues in accessing the law for those who do not speak English as their first language have been recognised. In the criminal law context, the impact of poor literacy and numeracy is often discussed as a factor in criminal history and recidivism. However, the equity issue of access to the civil law for Australians who speak English as their first language, but with limited literacy and numeracy, has not been addressed.

This study investigated the significance of alternative dispute resolution processes for these participants. According to the International Adult Literacy Survey (ABS 1997), between 1.5 million English speaking Australians may have very limited literacy and numeracy skills, and an equivalent number may have skills that put them at risk in such situations. Further, these Australians are drawn from all walks of life, including paraprofessionals and tradespeople, and across all ages, but particularly from older age groups who may have had restricted access to formal education. Limited literacy and, to a lesser extent, numeracy skills, still tend to bear a stigma in our society. Many individuals become skilled in concealing their difficulties, and most will avoid the embarrassment of disclosure, either by themselves or by others. To admit such a difficulty within alternative dispute resolution may cause a further equity issue, such that their position is weakened. However, not only are communication skills important in establishing interests and claims, but most disputes also involve the resolution of financial matters. Limited numeracy and understanding of the impact of an agreement may be equally as critical as limited literacy.

This study, therefore, explored three research questions:

• What alternative dispute resolution processes might create difficulties for Australians who speak English as their first language with limited literacy and numeracy?
• Have alternative dispute resolution practitioners identified limited literacy and numeracy as an issue for parties, and what strategies have they used to manage such a situation?
• What strategies would be effective in promoting awareness of alternative dispute resolution practitioners of literacy and numeracy issues?

Findings of the study were based on two major sources of information. The first source was surveys of alternative dispute resolution organisations and individual alternative dispute resolution practitioners, both with legal qualifications and without, across all states and territories. Six organisational and 51 individual responses (return rate of 22%) were provided by the practitioners, nearly half of whom had more than 11 years of experience in alternative dispute resolution. These practitioners were engaged across all areas of alternative dispute resolution, from family disputes, aged care and community issues, workers' compensation, land and housing disputes, to major construction and civil conflicts. Half of the practitioners had engaged in resolution of disputes that had been ordered to mediation by the courts.

A further source of information to determine the written literacy and numeracy demands of alternative dispute resolution was an analysis of documents against the National Reporting System (ANTA & Department of Employment, Education and Training 1994-95) to obtain a measure of the literacy and numeracy demands of these activities. A sample of forms and guidelines for accessing mediation and a sample of the documents provided from an actual mediation was used. These analyses demonstrated that both sets of materials required the types of literacy and numeracy skills indicated at least level 5 of the National Reporting System, the highest level. This level matches the language and mathematical skills expected of at least certificate level IV in the Australian Qualifications Framework. From the perspective of literacy and numeracy experts, then, the written literacy and numeracy demands of accessing and participating in alternative dispute resolution processes are seen as very high.

The survey findings include a range of perceptions, and illustrate different degrees of responsiveness to the issue of low literacy and numeracy. At the 'big end' of town, alternative dispute resolution practitioners involved in large commercial disputes tended to be barristers or industry experts of considerable experience. These practitioners indicated that solicitors were always involved in representing the parties and were considered to be responsible for the management of documents and final agreements. It was expected by these respondents that the solicitors would also have identified any literacy and numeracy difficulties in their parties.

Almost half of the alternative dispute resolution practitioners (25) indicated that they had never identified limited literacy and numeracy as an issue. Another 20% of practitioners (10) indicated that they had identified a limited literacy and numeracy capability of parties through personal observation. In many cases, practitioners referred to parties who spoke English as a second language, or Indigenous Australian participants. Several explained the strategies they had used to deal with the issue when it had arisen. These respondents provided a range of examples of alternative dispute resolution and literacy and numeracy issues.

The majority of practitioners agreed that the processes of alternative dispute resolution could present an equity barrier to those with limited literacy and numeracy skills. Most suggested the need for specific professional development or professional development materials for practitioners for dealing with literacy and numeracy issues in English speaking Australians. To date, this has not been a specific focus of training courses in this area, although equity issues are an important component overall. A number of practitioners who had identified literacy and numeracy difficulties indicated that they had drawn upon the general principles for dealing with issues of equity and power relationships contained within the procedures for alternative dispute resolution to resolve the specific dispute as fairly as possible. A number of practitioners were concerned that, with the benefit of hindsight, an issue of limited literacy and numeracy may have been overlooked.

Overall, the study has highlighted four key findings:

• Alternative dispute resolution processes do present high literacy and numeracy demands for the involved parties.
• While many alternative dispute resolution practitioners in the study indicated they were aware of potential literacy and numeracy issues, and a number identified strategies to manage the situation, many practitioners may not be aware of the limited literacy and numeracy skills of parties to disputes, or may rely on others to identify these prior to alternative dispute resolution.
• While alternative dispute resolution practitioners undertake training to address general issues that cause equity imbalances, they may need specific training for dealing with the issue of limited literacy and numeracy for English speaking Australians.
• Perhaps most importantly, it is possible that the literacy and numeracy demands of accessing alternative dispute resolution may prevent Australians, for whom these alternative processes are most suitable, from participating in these processes to resolve disputes.

Additional information relating to this research (appendices A-G) is available in Literacy, numeracy and alternative dispute resolution: Support document.