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Sir Laurence Street, AC, KCMG, QC, HFAIB, KStJ, has had a long and distinguished career in and outside the law. He was called to the New South Wales Bar in 1951 and later took silk, before becoming an Equity Judge of the Supreme Court in 1965. In 1974 he was appointed Chief Justice, the youngest ever appointee and third generation of Streets to hold that post, and was simultaneously Lieutenant Governor of New South Wales. Since retiring those posts in 1988, Sir Laurence has carried on a solo practice as a professional mediator and disputes consultant, interspersed with numerous other official and honorary appointments. He explained why he now devotes his efforts to mediation.

Having had such an illustrious career as a litigator and as a judge, why did you choose to move into ADR?
I left the bench because I'd been there long enough. I'd been an Equity Judge for nearly ten years and Chief Justice for nearly 15 years. You do your best work as Chief Justice in the first few years: you conquer the new territories you want to conquer, and then you tend to ride the boundaries rather than conquering new territories.

I had been interested in mediation as Chief Justice as an evolving mechanism which was coming to Australia, and in fact elsewhere in the common law world and the civilised world in general. I was retained to do one or two mediations, I found it very congenial, and I've since become a total devotee.

As a judge, deciding disputes is wonderfully professionally fulfilling. You make your findings of fact, you state the principles you are going to apply, you apply them to your findings, there's the judgment and you call the next case. It makes intense intellectual demands but not much emotional demand. Mediation doesn't make the same intellectual demands but I've found it emotionally very fulfilling because you're relating to people.

That's one of the strains of judicial life. There might be a party that you think has had such bad luck that you'd like to be able to give them a win, but you just can't do it within the constraints of your judicial oath. In mediation you're not delivering judgments, you're helping people to resolve conflict.

As a judge, very few people thank you for handling a case. They might say they had a fair hearing. But the losers are not going to thank you for having found against them and emptied them out. In mediation, it's amazing the number of times people will thank you for your contribution to resolving their conflict: they are now able to get on with their lives or their businesses.

To use a favourite Hong Kong phrase, I suppose there's greater scope for win-win outcomes in mediation.
The win-win is not in the terms of the settlement, it's in the fact of the settlement. The win that both parties share is closure. Neither one does as well as they'd hoped or believed they might in litigation, and to that extent they've both got to wear a degree of pain. But they both share totally in the closure. In that way mediation makes a positive contribution towards peaceful coexistence.

Mediation has had something of a mixed reception here in Hong Kong. It's been up and running in certain fields for a while, but it's only now with recent civil justice reform that it will have real judicial force behind it. How was mediation received in Australia and for how long has it been a part of the dispute resolution landscape?
In any common law jurisdiction it's received with a degree of suspicion. When I started mediating after I left the bench my former colleagues were very stand-offish about it, as were other lawyers. I made some presentations in England and here in Hong Kong in the early 1990s - I was at the time a member of the London Court of International Arbitration - to small groups who received it with polite interest, but it didn't plant the seed. You've got to keep replanting the seed, and then bit by bit people begin to see the benefit of it.

Once people have been exposed to the mediation process they see the great value of it. It has a moral validity in resolving conflict, and it has a practical attraction. Courts don't resolve disputes. I was a judge for nearly 25 years and I would have decided thousands of disputes, but I never resolved any, because in every case somebody wins and somebody loses.

To what extent would you say, in Australia for example, that mediation has now been accepted and that people see the value of it? Do you have any advice from that experience that you could offer to Hong Kong?
You've got to keep on and on pressing the advantages of it. Some older lawyers who have been brought up in the adversarial mode of handling conflict find it hard to get on board, but they're being challenged by younger lawyers coming forward, who in the course of their university training have had exposure to the consensus-oriented philosophy. Bit by bit it's coming in to the legal profession from the new lawyers moving upwards. It's very hard to bring it in at the top and push it down.

Some jurisdictions have more expertise in mediation than others do. How transferable are mediation skills across borders? Do you think there would be some value in Hong Kong importing some of that expertise?
Mediation is all about human nature, and human beings are much the same in their approach to conflict. I don't know that borders are very significant. Cultural differences can present an initial challenge for the mediator, but they are not necessarily an impermeable membrane; it's up to the mediator to be able to adjust the approach to the particular circumstances. Some cultures may be more prone to excitable forensic skirmishes, others may be much milder, but as a general rule none of us really relishes the idea of living in conflict. Often, sadly, people are thrown into conflict, or they're not fortunate enough to live a lifestyle where they can be free of conflict, but we all crave peace; it's balm to the spirit, if you like.

I am almost reluctant to ask, but what are some of the disadvantages of mediation, and how can we get over those?
I don't think there can ever be a disadvantage in trying to bring a healing resolution of a conflict. Conflict is inherently destructive: of peace of mind, of physical health, of relationships, of material fortunes. Disputes are part of human nature - we all tend to want to justify our own point of view - but ultimately, if we can have a way in which we can negotiate a resolution that we can live with, that has enormous value. If both sides try in good faith to get a settlement but they just can't get there, that's a regrettable failure but it's not necessarily a downside. They're the better for having tried, because quite likely a seed may have been planted, and in the next two or three months it might turn into a resolution.

I've heard this often happens: even when the mediation has failed, it's caused the parties to re-evaluate and to have a better appreciation of the common ground.
Yes, because the mediator's task is really to help the parties to take an objective overview. The first stage to a mediation is opening up channels of communication between the parties. Quite often, when conflict emerges communication dries up. In the family area, the parties lose eye contact and voice contact. In commercial disputes the parties are told by their lawyers: "don't talk to the other side, I'll talk to my counterpart."

But the communication flow is not an end in itself; it's simply a step along the way in building bridges of understanding. If the parties can get an objective understanding of the total dispute, they can much better negotiate a settlement. I never ask parties to agree with each other - they are often much too deeply entrenched in their positional standoff - but I ask them to understand where the other party is coming from. Then they can much better negotiate a deal.

In the context of commercial mediation, what do you think of the method whereby the mediator tries to help each party to understand the risk factors of its own position?
It's part of the overall mediating approach. You've got to get parties to see the totality, which includes the downside of litigation, where they may risk everything on a court case. They may think they'sre going to win the court case, but they haven't got a guarantee. It is very much part of the mediator's stock in trade to try to unsettle what may be an optimistic hope that they can't fail to win. There's always a risk; then comes the question of risk evaluation and hedging against the risk. If both parties can lower their expectations to accommodate the risk then you can get a deal.

You have cited four broad areas in which you yourself conduct ADR: commercial, professional, public interest and political disputes. What are your experiences with those last three areas?
When you have differing groups within an organisation that hold differing views about issues that affect the organisation as a whole, you often have people of comparable intelligence and comparable commitment holding differing views with equal conviction. The task is to prevent the differences of opinion from driving them apart and find a way to join the commitments together. An example would be internal corporate disputes about how an organisation is to go forward. They may be differing factions trying to evolve a corporate philosophy, but they are focusing more on the factional difference than upon the joint interest in the success of the venture.

What do you see as the future for mediation?
I think there is an unlimited future for it, but it depends upon the stage of civilisation of the particular community that you're talking about. You can't do much good mediating in an uncivilised tribe, because their way of handling conflict is to have a trial of strength. The more civilised a community, the easier it is to get the parties to forget their personal prejudices and look at the good of the total entity, and try to find a way in which each component participant in that total entity can achieve some of their goals.

Part of the magic of mediation is that the parties themselves have to own the resolution. In a court case where one party wins and one loses, the one that's lost is often rigorously critical of the process - the judge didn't understand the issue or the lawyers made a mess of it - and the other side isn'st necessarily delighted with it either. Contrast that with a mediation, where both parties go back with a degree of disappointment but never loss. They've negotiated with their counterpart, they've got a deal they can live with, and they can get on with their business and their life. The win-win is in the fact of the settlement, not the terms of the settlement.