Attention all Dispute Resolution researchers

We are pleased to announce that the 2016 Australian Dispute Resolution Research Network Roundtable will be held at the University of Tasmania in Hobart in 2016.

The dates to set aside are Friday 9th December (starting in the late afternoon/early evening) until Sunday 11th December (finishing at noon). This is the beginning of school holidays in some states, so you might plan to bring your family to sunny Hobart 🙂

The Roundtable will follow the same format as in 2015:

• a focus on work in progress (ie, it’s not a conference, but a collaborative workshop around a table of supportive peers)
• a limited number of papers selected for in depth discussion
• two appointed primary commentators for each paper
• attendance is limited to people who are presenting or commentating upon papers
• a call for abstracts and expressions of interest in participating as a reviewer will be announced through this blog in 2016
• full papers must be submitted for distribution one month prior to the roundtable

Queries can be directed to the co-convenors Olivia Rundle (University of Tasmania) Olivia.Rundle@utas.edu.au or Kate Curnow (University of Queensland) k.curnow@law.uq.edu.au

In short: save the dates in your diaries and watch this space!

From our friends over at indisputably.org –  video recordings of presentations from a symposium on dispute systems design held  University of St. Thomas Law School in November this year.

http://www.indisputably.org/?p=7829

It’s relatively rare to see  academic work on this very important area of dispute resolution, so it’s well worth a look.

Enrolments are now open for a brand new offering at the University of Tasmania. The Graduate Certificate in Workplace Conflict Management is an almost fully online course aimed at anyone who manages people in a workplace. The advantage of this course is that it is specifically tailored for the workplace context. The four units are:

1. LAW555 Understanding Workplace Conflict
2. LAW556 Workplace Conflict Management Systems
3. LAW567 Supporting People in Workplace Conflict
4. LAW568 Managing and Decision Making in Workplace Conflict

We have structured the course so that students will be engaging in one unit at a time between February 2016 and November 2016. This is aimed to make it possible for people who work full time to be able to study at the same time and also complete the qualification in a one year period. The first two units are fully online, the second two are mostly online and each include one four day intensive, to be held in Sydney.

The Co-coordinators of the course are Associate Professor Samantha Hardy and Dr Olivia Rundle (both members of the Australian Dispute Resolution Research Network). Sam and Olivia have a long standing passion for conflict and dispute management education, research and training. We are both experienced in delivering quality online university courses.

Please follow the links above and here if you think this sounds interesting, and pass the news on to people you think might benefit from the course.

By Professor Laurence Boulle, Thomas More Law School, Australian Catholic University
  

This piece complements the post by Associate Professor Bobette Wolski introducing the Australian National Mediator Accreditation System (NMAS) published on this blog earlier this month. 

Background

Version 2.0 of the NMAS became effective on 1 July 2015. It is designed to enhance the quality of mediation practice by up-dating and simplifying the previous standards and provide some structure to RMABs and the MSB.

This version had a painful and protracted parturition. Drafting should be easy but having been involved in these standards, and in a similar system abroad, I know this is not the case.

The political context

It is challenging to keep all interest groups within the tent, particularly lawyers who approach the practice standards from a risk perspective and are concerned that any specificity in regard to the mediation procedures could leave them exposed. Indeed, the legal profession might yet elect to set up its own standards.

The indeterminacy of words

As HLA Hart told us decades ago, all words have a core of certainty and a penumbra of uncertainty. As soon as one starts drafting the core seems to shrink and the penumbra to expand. Drafters spend hours pondering over the meanings of words. Fortunately the NMAS is not a bilingual document.

Definitional challenges

We all thought, post-NADRAC, that definitional conundrums were behind us. Sadly they are not. Drafters, at the risk of their health, endlessly revisit definitions of ‘mediation’, ‘conciliation’, ‘blended process’, ‘impartiality’, and the like. Thanks to the work of a few radical revolutionaries ‘neutrality’ was not defined but banned from the discourse.

Organisational challenges

Volunteers work in bursts of frenetic activity, followed by weeks and months during which the momentum is lost. In the eventual pursuant meeting they start again: definitions, words, politics and the rest. Not to mention the ego challenges which surface in the interstitial crevices of drafting projects.

The evidence question

Has the NMAS improved quality in the provision of mediation? As usual the evidence is meagre. Will version 2.0 enhance knowledge, skills and knowledge in the area? Time might tell. But it might not. Social science surveys tell us that social science can only survey 20% of the variables in human variables. Mediation is a social science.

The result

For the above reasons all Standards, and all drafting, involve many compromises and many are reflected in the NMAS version 2.0. Now it’s over to the research scholars to analyse the contribution they make to dispute resolution practice. However please mind your definitions.

Olivia Rundle’s article ‘Lawyers’ participation in mediation and professional ethical disposition’ (2015) 18(1) Legal Ethics 46 is a must read for mediation professionals, dispute resolution academics and legal practitioners. In it, Olivia reveals the variable and contextual role lawyers can play in mediation through an exploration of the relationship between a lawyer’s ethical orientation and their participation in mediation. She builds on and develops her previous work on models of lawyer participation in mediation (see particularly Olivia Rundle ‘A Spectrum of Contributions that Lawyers can make to Mediation’ (2009) 20 (4) Australasian Dispute Resolution Journal 220).

In her article, Olivia demonstrates the breadth of factors that may influence lawyers’ participation in mediation as well as the potentially complex and variable impact the particular matrix of factors that impacts on any individual lawyer may have. The article begins by mapping the structural, external and personal influences on lawyer participation in mediation. Lawyer behaviour in mediation is then explored using a combination of Parker and Evans’ four categories of lawyers’ ethical orientations to legal practice and three of Olivia’s models of lawyer participation that may occur in mediation. Issues associated with the purpose in mediation of, relationship with client of and challenges to adversarial advocates, responsible lawyers and moral activists are examined. In the conclusion, Olivia makes recommendations about how the analysis in the article should impact upon mediator practice and encourages self-reflection by lawyers about their role in mediation because of its importance to their achieving their aims.

This article brings a new, intellectually rigorous perspective to the discussion about lawyer behaviour and participation in mediation. The debate is certainly no longer simply whether lawyers’ participation in mediation is beneficial or detrimental. The real issues are far more nuanced and include how can and when will lawyers effectively participate in mediation.   As Olivia identifies, this raises significant issues for mediators and lawyers. Is there even a potential it raises new disciplinary and ethical issues for lawyers?

By Bobette Wolski, Bond University

By now, most mediators in Australia are familiar with the National Mediator Accreditation System which facilitates accreditation of mediators (and the creation and maintenance of a national list) and regulation of their conduct.

The National Mediator Accreditation System (‘NMAS’) commenced operation in Australia on 1 January 2008. The NMAS is an industry-based system which relies on voluntary compliance by mediator organisations (known as Recognised Mediator Accreditation Bodies or RMABs) that agree to accredit mediators in accordance with stipulated NMAS Standards. Two sets of Standards were promulgated in 2007-2008: Approval Standards which define minimum qualifications and training for accreditation and Practice Standards which specify the minimum practice and competency requirements of a NMAS accredited mediator. The NMAS and the Standards were recently revised, with the revisions becoming effective on 1 July 2015. As a result of the revisions, the Approval and Practice Standards are set within the context of a ‘broader document covering ancillary aspects of the NMAS’ including an Introductory section (Part I), more formal provision with respect to RMABs including the imposition of an obligation on them to upload to the National Register the list of mediators accredited by them (Part IV), provision with respect to the Register of Nationally Accredited Mediators (Part V) and a section dealing with membership and responsibilities of the Mediator Standards Board (MSB) (Part VI). (See letter from Anna Lee Cribb, Chair of MSB to members, dated 8 March 2015, together with a history of the development of the standards, available from the NMAS website).

Behind the scene, the process of drafting of standards of conduct is itself fraught with difficulties. Most standards end up representing a compromise between various possibilities eg between being specific and prescriptive on the one hand and general and aspirational on the other; and reflecting the tension between the need for certainty, predictability and enforceability on the one hand and flexibility and scope for the exercise of discretion on the other.

Laurence Boulle AM, Professor of Law at the Australian Catholic University, author of many popular mediation texts including Mediation: Principles, Process, Practice and former chair of the Mediator Standards Board was asked to share his experience of the process of drafting the NMAS Standards.