Continuing our series introducing ADR network members we speak to Dr Susan Douglas.

Sue is employed as a Lecturer in Business Law, Faculty of Arts and Business, University of the Sunshine Coast. She also works with the Suncoast Community Service as a member of that organisation’s management committee and as a volunteer legal practitioner. Sue has been a member of the Maroochydore Neighbourhood Centre management committee for many years. Her particular contribution to university service is as a member of the Human Research Ethics Committee. She has an interest in socio-legal perspectives in dispute resolution and in qualitative research. 

 Why did you become interested in the dispute resolution field?

I first became interested in ADR as a social worker working in child protection. I conducted assessments around children at risk and would be called to attend the Children’s Court to give testimony. It was very obvious that the adversarial (albeit modified) process of investigating questions of risk was fraught with difficulties for the families at risk. At that time mediation was in its early years and as a movement promised the prospect of an alternative more appropriate to socio-legal issues in dispute resolution.

What is your particular area of dispute resolution research interest?

My particular area of interest is socio-legal perspectives in dispute resolution. My background in law and social work gives me a useful vantage point from which to consider the intersecting contributions of law and the social and behavioural sciences. Mediation, in particular, has really developed from the combination of the social and behavioural sciences and law. Practitioners and scholars recognise this, of course. I am always eager to spell out those connections, develop them and  learn from them. I am also keen on developing understanding of DR from the ground up and hence in gathering the perceptions and understandings of practitioners for developing theory. I like talking to mediators about their experience and how they make sense of their practice and I enjoyed this aspect the most in completing my PhD. 

Whose research has influenced you? Why/How?

I am particularly appreciative of the work of others in the ADR Research Network and am influenced by the direction of their research interests and enthusiasm. It’s wonderful to have a collaborative forum through which to share ideas and experiences and from which to gain support and encouragement.

I was particularly influenced by Hilary Astor’s work when I began pursuing research into mediation. Hilary’s work demonstrates great scholarship and a critical appraisal as well as commitment to developing theory for practice. Her work on neutrality in mediation was the starting point for my own investigation as the subject of my PhD. Established scholars and contributors such as Laurence Boulle, Dale Bagshaw, Ruth Charlton and Micheline Dewdney and many others have influenced me. I have been keen to understand models that are alternative to the classic, facilitative model and have of course been influenced by Winslade and Monk and Bush and Folger. Narrative and transformative models have particular resonance for me with social work practice and principles. I have also found that the mediators I have interviewed for research purposes like to include at least aspects of these models in their practice. 

What dispute resolution research are you involved in at the moment?

I am pursuing two projects in Family Dispute Resolution Practice (FDRP) with the Maroochydore Family Relationship Centre (FRC). I really enjoy the contact with the FDRP’s there and the manager/ co-ordinator of the service. One project is an investigation of what the FDRP’s see as ethics issues for their practice and another is an evaluation of a joint project between the FRC and the Suncoast Community Legal Service in providing legal advice.

Where would you like to take your dispute resolution research work over the next ten years?

Ten years is a long time ! I would like to be doing a series of qualitative studies with practitioners and see what issues emerge for them and from that survey larger populations around key issues. I would like to do more in relation to collaborative research projects. The Network certainly has the potential to harness the energy of participants into lots of interesting, engaging and relevant collaborative projects.

What advice do you have for emerging dispute resolution researchers?

It can be very isolating when doing a higher degree by research and there are perhaps very few research positions in the DR industry. It’s helpful to be part of a peer group for support and encouragement. The Network is also a forum for introducing and encouraging newer researchers, for sparking enthusiasm and new ideas, and for lending experience to emerging researchers. There is always so much to learn about research and new avenues to explore; it’s always emerging even for those with experience.

As part of our series of posts introducing ADR Research Network members, we meet Dr Lisa Toohey. Lisa is a Senior Lecturer and director of dispute resolution programs at the Faculty of Law at the University of New South Wales in Sydney. 

Many of us in the ADR community have been disappointed and horrified observers of the long-running family feud between a matriarch and her children.

There have been a number of attempts at mediation that we know of and, undoubtedly, many other confidential efforts to resolve this privately.

It has been very tantalising to watch. Talking with my ADR colleagues, it is clear that we have chosen to join this community because of our commitment to ADR principles and the opportunity they provide for durable resolution of disputes and the relationships they threaten.

It is tempting, in the face of very long drawn out and vitriolic proceedings, to see this case as a failure of ADR. However I have now worked my way through the elegant, carefully constructed and exceedingly thorough judgement of Brereton J[1] delivered last week and it has prompted me to revisit my thinking.

Those of us who teach ADR are careful to talk about repertoire rather than revolution. We explain carefully that choosing the most appropriate dispute resolution process will always depend on the interests of the parties. Sometimes uncovering and scrutinising the interests of the parties reveals that a private, consensual process does not satisfy the interests of at least one of the players. It seems a logical pursuit of its interests for a pharmaceutical company which owns the patent for the most profitable drug in the world to punish, aggressively, expensively and publicly, the generic brand threatening its patent. It has an interest, regardless of the expense, of giving a powerful signal to other would-be infringers to stay away. This could not be described as a failure of ADR. Rather it is an example of a party choosing, from the entire dispute resolution repertoire, the course of action which best meets its interests.

We are accustomed to families preferring harmony over disputes. Unless we are in the business of selling gossipy magazines, it is painful and unwelcome to watch the public disintegration of family life. Most of us would prefer to believe that familial love is so strong that it can find a way to resolve conflict with a generosity of spirit and a willingness to respect and honour differences.

This case challenges us to question those assumptions and our preference for peaceful resolution. Brereton J’s unpicking of the long chain of events reveals a conflict of values. In one corner we can identify the values of power and control – in the other corner the values of access to justice – feeling fairly treated within a framework of due process. The interests of each party in family harmony became, as the situation unravelled, subordinate to the values expressed in their very public dispute. Reading the story it is clear why the parties could not abandon the fight.

It is not a failure of ADR. It is the parties pursuing their powerfully held and conflicting interests, with none willing to sacrifice these interests in the pursuit of peace and family harmony.

Unpleasant as it is to be the unwilling observers of such an intimate and expensive spectacle, it is also useful to stand back and reflect. The reflection is useful and encouraging. It provides confirmation for us as ADR proponents that ADR remains alive and well; an important part of the dispute resolution repertoire. It just doesn’t suit all of the parties all of the time. The answer is always in the interests.

[1] See http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWSC/2015/646.html?stem=0&synonyms=0&query=rinehart&nocontext=1