The Australian Centre for Justice Innovation (ACJI) and the Australian Institute of Judicial Administration (AIJA) are hosting a lecture on the Productivity Commission Access to Justice Arrangements Inquiry. The report, released in December last year, had made many recommendations regarding dispute resolution and access to justice, including increased use of ADR by the courts.

The lecture will be delivered by Dr Warren Mundy, a Commissioner of the Productivity Commission and the Presiding Commissioner on the Commission’s Access to Civil Justice Inquiry.

In this lecture, Dr Mundy will reflect on the findings and recommendations of the Productivity Commission’s inquiry into Access to Civil Justice. In particular, he will explore the application of economics to the examination of civil justice policy and institutions and discuss future challenges to improving access to civil justice.

This lecture precedes a full day seminar on 26 June 2015, jointly convened by ACJI and AIJA. Further details will be provided at a later date on the AIJA and ACJI websites.

A flyer for the lecture to be held in the Melbourne CBD at 12.30 pm on Friday 13 February 2015 an be downloaded here.

The Dispute Resolution Branch of the Queensland Department of Justice and Attorney-General are offering a scholarship for two young people, one male and one female, to gain mediation skills and assessment for National Mediator Accreditation.  The Scholarship honours the memory of Jack Cranstoun, who was one of their staff.

Applications close 6th February 2015.

Full details here:

https://conflictresolvers.files.wordpress.com/2015/01/jack-cranstoun-scholarship.pdf

By Katherine Curnow and Professor Laurence Boulle

In conjunction with Professor Michael Weir and Dr Tina Hunter, we are looking into private landholder perceptions of the negotiations they have had with resource companies about conduct, compensation and access agreements (CCAs) as part of a broader project to design an optimal regulatory structure for land access. The negotiations we are examining occur in connection with the heavily regulated activity of coal seam gas extraction (CSG). Resource companies with authority to extract CSG frequently need to access private land in order to conduct extraction related activities. There has been growing concern about the impacts on the use and enjoyment of private land by its owners and occupiers (landholders) from the long term (often for decades), co-existential use of the land by resource companies and landholders. While a landholder cannot refuse access to their land, Queensland legislation (and that in many other Australian jurisdictions) requires resource companies to enter into CCAs with landholders.

Our analysis of the complex environment in which CSG extraction activities occur has lead us to conclude that promoting the public interest and not simply the interests of the negotiating parties, managing information asymmetry between the parties and appropriately allocating the cost of negative externalities resulting from CSG development activities warrant regulatory intervention in relation to CCAs, their negotiation and disputes while they are on foot. A key objective of any regulation must be to promote the integrative dimension of the negotiations. For our full analysis of these issues, see our forthcoming article in the Australasian Journal of Natural Resource Law and Policy:

Boulle L, Hunter T, Weir M, Curnow K, “Negotiating Conduct and Compensation Agreements for Coal Seam Gas Operations: Developing the Queensland Regulatory Framework” 17(1) AJNRLP

Interviews we have conducted with landholders have produced evidence of a distributive dimension to many CCA negotiations. Landholders perceive that resource companies use power: including through withholding information and utilising a “big stick” approach to the negotiations, as well as add-ons in the negotiation of CCAs. We are, therefore, exploring how to encourage timely and fulsome information exchange and the use of power for creative problem solving. We are analysing the suitability of both express regulatory obligations (such as in the Native Title Act 1993 (Cth) in relation to the negotiation of indigenous land use agreements) as well as NUDGE-type strategies.

How, in your view, can the integrative dimension of negotiations be effectively promoted, whether through regulation or otherwise?

As we start 2015 (with bush fires and floods in Australia) I would like to post about a topic that I think is of real importance to mediation. We all know that ADR and in particular mediation, is commonplace in our justice system, mainly due to the positive affect mediation has on lowering matters reaching court. What I believe gets less attention is how mediation is practised. Too readily the rhetoric of mediation is accepted by courts and policy makers without a critical examination of how parties are treated in mediation. The experience of mediation for parties is just as crucial as the lowering of the matters listed for hearing in courts. One issue of importance is whether parties have the opportunity to express emotion in mediation. How do mediator’s respond to emotion? Do they see emotion as having a place in mediation? What interventions do they practice to engage with emotion?

As part of a research project we asked 16 mediators about emotion and found many open to engaging with emotion in mediation, but having a rather unsophisticated approach to the theory and practice of emotion in this context. Well meaning but largely uninformed they did have a number of strategies that they used including using the ground rules, private sessions and summarising and rephrasing. If you are interested check out this article for more details of our research:

Douglas K and Coburn C, ‘Attitude and Response to Emotion in Dispute Resolution: The Experience of Mediators’ (2014) 16 Flinders Law Journal 111

I’d be interested to hear other peoples’ views of the place of emotion in mediation.