Thanks to Fiona Hollier, an opportunity just came to my attention. The US based Association for Conflict Resolution (ACR) is calling for emerging researchers to submit proposals to present at their conference in October in Baltimore. The selection criteria aim to support the dissemination of interesting research that might not otherwise come to the attention of their members.

The presentation serves three primary functions: 1) to inform our membership about a topic in which they might not have engaged and/or excite them about new possibilities in the field; 2) to inspire our membership with the high quality of work being done by those preparing to enter or newly practicing in the field; 3) to give an opportunity to a number of our newest professionals to demonstrate the contribution being made by the “New Voices” in the field.

Further details are available at http://www.imis100us2.com/ACR/ACR/Education___Training/Conflict_Resolution_Training.aspx

Additional opportunity

The conference presentation will also be videoed and featured on the ACR website.  Additionally, a select number of submissions that were not selected for presentation at the conference will be invited to submit a video for the website.

Who is eligible to apply

All current or recent students in programs specializing in conflict resolution or interdisciplinary programs in which conflict studies are an integral part may apply.  Practitioners who may not have been students in certificate or degree programs but have done other forms of training and have entered the field in the last five years are also invited to apply.

If you are doing some research in an innovative space or from a unique angle, consider applying for this fantastic opportunity to disseminate your work on the international stage.

I haven’t heard anything official yet – but on the grapevine it seems that the Law Admissions Advisory Committee (LACC) might be listening to those of us advocating for the recognition of DR in the law curriculum.

Members of the ADR Research Network, and the DR community more broadly – particularly the DR legal academic community – have long been arguing that the law curriculum needs to better integrate ADR knowledge, skills and attitudes if law schools are to prepare their students adequately for entry into the legal profession and the wider world of work. This view was very clearly reflected in the Threshold Outcomes for Law (Sally Kift, Mark Israel and Rachael Field, Learning and Teaching Academic Standards Project: Bachelor of Laws Learning and Teaching Academic Standards Statement December 2010 (Australian Learning and Teaching Council, 2011)).

In March 2015, members of the Wellness Network for Law (Madeleine Dupuche, Lecturer, College of Law, Dr Anna Huggins, Senior Lecturer, QUT Faculty of Law, and myself) made a submission to LACC’s Review of Academic Requirements for Admission to the Legal Profession.  That review is reconsidering the content of the Priestley 11 – the 11 subjects required for eligibility for admission to legal practice.

Our submission made a number of recommendations. We argued that the law curriculum should be intentionally designed to better equip law students for success in legal education and in the law, and that an important strategy in achieving this involves including DR as a core subject in the law degree (we chose to use the term ADR for clarity in our communication with the members of LACC who we thought would be more familiar with it).  The relevant part of the submission reads as follows:

Alternative Dispute Resolution

In response to paragraphs 6.4 and 6.5 of the LACC discussion paper the Network makes the following submissions:

• Alternative Dispute Resolution (‘ADR’) should be added as an academic requirement.
• Field and Duffy argue that the majority of Australian law schools are fundamentally failing future practitioners, and the future of the legal profession more broadly, by only offering ADR as an elective subject, thereby highlighting the disconnect between the law school curriculum and 21^st century legal practice (James Duffy and Rachael Field, ‘Why ADR must be a Mandatory Subject in the Law Degree: A Cheat Sheet for the Willing and a Primer for the Non-Believer’ (2014) 25(1) Australasian Dispute Resolution Journal 9). They contend that the following reasons, and others, exist for including ADR as a compulsory subject in the law school curriculum:
  • An absence of compulsory ADR does not reflect current legal practice (for example, ‘it has been estimated that the number of commenced civil actions that culminate in adjudication is less than 5%’;
  • Participation in ADR processes is mandatory under legislation in many Australian jurisdictions;
  • Lawyers have ethical duties to advise about ADR;
  • Good lawyers are emotionally intelligent and ADR instruction contributes to the development of emotional intelligence;
  • Lawyers need to understand about the theory and nature of conflict and this necessarily requires instruction;
  • It is impossible to meet the threshold learning outcomes without exposing all students to ADR instruction;
  • ADR instruction can help students develop a positive professional identity;
  • Teaching ADR supports students’ psychological well-being.

These are compelling reasons for the inclusion of ADR as an academic requirement.

• The High Court of Australia has recently emphasised the need for practitioner cooperation in the resolution of disputes. In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46 (6 November 2013), the Court emphasised the over-riding purpose of the Civil Procedure Act 2005 (NSW) (‘CPA’) as being the facilitation of the just, quick and cheap resolution of the real issues in the dispute. It noted that the solicitors involved had a responsibility to conduct themselves in a way which would assist the court to facilitate the overriding purposes of the CPA: ‘[Cooperation] is an example of professional, ethical obligations of legal practitioners supporting the objectives of the proper administration of justice’ [at 67].

• The National Alternative Dispute Resolution Advisory Council (‘NADRAC’) supported the mandatory inclusion of ADR in the law curriculum, particularly in its 2012 Report: Teaching Alternative Dispute Resolution in Australian Law Schools. That Report made the case for compulsory ADR in the law degree based on the results of a survey of Australian law schools conducted by NADRAC during late 2010 and early 2011; views expressed by forum participants during a panel discussion facilitated by NADRAC at the RMIT University: ADR in Legal Education and Promoting Student Wellbeing Forum, and NADRAC’s own research, analysis and consideration of the topic, including substantial input from a number of NADRAC members with long-standing and specialist expertise in the tertiary sector.In a 2009 report, NADRAC also stated: ‘NADRAC is of the view that more professional development is needed. NADRAC believes that better training at universities is required and that ADR must be elevated from a mere adjunct to civil procedure or litigation subjects to being taught as a full course. An ADR course should be a compulsory core subject that is a prerequisite for admission’ (NADRAC, The Resolve to Resolve: Embracing ADR to Improve Access to Justice in the Federal Jurisdiction (September 2009), 62)

(Note that NADRAC  was unfortunately abolished in late 2013 but its work still remains very valuable and relevant: See Dr Becky Batagol’s Blog for the ADR Research Network: Dumb Decision— The Closure of NADRAC posted on 12/11/2013)

• If a dispute resolution culture is to be achieved in Australia, this must necessarily commence at a grass-roots level in Australian law schools, where it is appropriate for ADR to be a compulsory subject for law students. For this reason, and the reasons articulated above, ADR should be included as an academic requirement for admission to practice.

Fingers crossed we will see some official good news about the inclusion of DR in a revised articulation of the Priestley 11 soon!

Feminist writing in the 80’s and 90’s questioned whether family mediation could be a fair process resulting in just outcomes where there was a history of domestic violence. Informed and inspired by the work of some of Australia’s great legal feminist thinkers – such as Hilary Astor, Kathy Mack, Reg Graycar and Jenny Morgan, my own stance was, for at least a decade, quite critical about the efficacy of the use of informal dispute resolution processes in such circumstances.  This stance is documented in, for example, ‘Mediation and the Art of Power (Im)Balancing’ (1996) 12 QUT Law Journal 264; ‘Family Law Mediation: Process Imbalances Women Should Be Aware of Before They Take Part’ (1998) 14 QUT Law Journal 23; ‘Federal Family Law Reform in 2005: The Problems and Pitfalls for Women and Children of an Increased Emphasis on Post-Separation Informal Dispute Resolution’ (2005) 5 QUT Law and Justice Journal 28; and ‘Using the Feminist Critique of Mediation to Explore “The Good, The Bad and The Ugly” Implications for Women of the Introduction of Mandatory Family Dispute Resolution in Australia’ (2006) 20(5) Australian Journal of Family Law 45.

My work as a feminist dispute resolution academic has always been informed by my involvement (as a volunteer since 1993) with Women’s Legal Service in Brisbane (WLS).  A Service like Women’s is very special – the staff do amazing work every day advocating for justice for vulnerable women, specializing in complex family matters and domestic violence.  At Women’s, we are committed to respecting the lived experience of the women we serve.  This sometimes means questioning whether polemical theoretical feminist stances are supporting or hindering the cause of advocating for justice for them in a real sense.

In the mid to late 2000’s we were collectively starting to think that perhaps some of our clients who were victims of domestic violence could benefit from access to a safe form of family mediation. We believed that the standard model could not be applied or experienced fairly and with just outcomes for women and children in the particular circumstance of a history of DV.  And we knew that the alternative options available to our clients (who often are unable to access legal aid as well) would almost certainly result in injustice for them: on the one hand they could negotiate over the kitchen table with the perpetrator of violence against them, and on the other hand they had the spectre of self-representation in the Family Court.

For a number of years we advocated at a national level, and in a range of forums, for a safe model of family mediation.  We argued that in order to ensure that the voices of vulnerable parties can be heard in family mediation, an intentionally designed process with specific steps and strategies was necessary.

In 2009, the Australian Federal Attorney-General’s Department came to us at WLS and asked if we would design the model we were arguing for.  In collaboration with many experts and friends of WLS and in consultation with a national reference group, Angela Lynch (of WLS) and I designed a model of family mediation which was called Coordinated Family Dispute Resolution (CFDR).  It was an innovative, distinct, new model of family mediation with theoretical, scholarly foundations, using a multidisciplinary approach within a framework designed to ‘provide a safe, non-adversarial and child-sensitive means for parents to sort out their post-separation parenting disputes’ (R Kaspiew, J De Maio, J Deblaquiere and B Horsfall, ‘Evaluation of a Pilot of Legally Assisted and Supported Family Dispute Resolution in Family Violence Cases: Final Report (Australian Institute of Family Studies, 2012), ix). CFDR was piloted between 2010 and 2012 in five different locations around Australia.

CFDR is resource intensive. But it accurately represents the level of resources that are necessary for safe mediation where there is a history of DV.  CFDR involves a strong focus on preparing the parties to be ready, as a result of counselling, and legal and information sessions, for their participation in family mediation. Its coordinated and multi-disciplinary nature means that a number of professional participants are asked to bring their unique professional expertise to the model. The team of professionals required for the implementation of CFDR includes: mediators who specialise in the process and conduct of mediation; lawyers who provide each of the parents with independent legal advice, advocacy and representation; domestic violence workers who conduct specialist risk assessment, counselling and support, information and advocacy to victims of domestic violence; and men’s workers who work with a gendered analysis of violence and follow recognised best practice standards for working with perpetrators of family violence and provide counselling and advice to perpetrators in the process (R Field and A Lynch, ‘Hearing Parties’ Voices in Coordinated Family Dispute Resolution (CFDR): An Australian Pilot of a Family Mediation Model Designed for Matters Involving a History of Domestic Violence’ (2014) 36(4) The Journal of Social Welfare and Family Law 392). The model also envisages a specialist children’s practitioner to be involved in matters where appropriate, along with other specialist workers, such as disability and migrant workers, depending on the needs of the family.

The pilot was evaluated by the highly respected researchers at the Australian Institute of Family Studies under the leadership of Dr Rae Kaspiew. A number of the evaluation findings affirmed the efficacy of the design elements of the model in terms of facilitating the safe and effective practice of family mediation where there is a history of domestic violence (Kaspiew et al, 2012). For example, it was found that adequate risk assessment for the parties’ safety and well-being is critical in domestic violence contexts; preparation for the parties’ participation in the process was key; and vulnerable parties have more chance of making their voice heard in mediation in the context of lawyer-assisted models, as long as those lawyers are trained adequately in dispute resolution theory and practice. In short the report said that CFDR was ‘at the cutting edge of family law practice’ because it involved the conscious application of mediation where there had been a history of family violence, in a clinically collaborative multidisciplinary and multi-agency setting.

Despite the positive evaluation and the ardent belief by many in the pilot agencies that this model is necessary in the family law system as a safety measure for victims of violence and their children post-separation, CFDR has not been rolled out due to political, resource and funding issues. This is unfortunate, and the Australian government’s failure to capitalise on the proven efficacy of CFDR jeopardises the safety and value of family dispute resolution practice in domestic violence contexts, and compromises the hearing of the voices of family violence victims and their children.

I strongly urge the Australian government to better acknowledge that the safety of victims of violence in family dispute resolution is an important family governance and justice issue. The future lives of families are ultimately at stake.  The CFDR model should be reintroduced.

What does it mean to be an Australian lawyer in the 21^st century? What are the contemporary demands of effective and efficient lawyering to adequately meet the diverse needs and interests of clients and society?  How can lawyers be part of a profession and a business at the same time? Dispute resolution knowledge, skills and attitudes are the key to answering these questions.

The legal profession professes the rule of law which provides a foundation for civic systems of law and government; serving society by supporting social stability and order, giving ‘vitality to peace, freedom and decency’, and ensuring freedoms (Gerard Brennan, ‘The Role of the Legal Profession in the Rule of Law’ Address at the Supreme Court, Brisbane 31 August 2007, 1). For this reason members of the legal profession engage in an enterprise that is more than simply a commercial industry driven by the neo-liberalist market ideology of the maximization of individual personal gain through the provision of services for profit. As Justice Kiefel of the Australian High Court has said:  ‘Practising lawyers do not just run a business, selling their skills and services to clients in return for fees. The practice of law is a profession and this sets it apart from other, commercial, enterprises’ (Susan Kiefel, ‘Ethics and the Profession of the Lawyer’, Address to the Queensland Law Society The Vincents’ 48th Annual Symposium 2010, 1).

Nevertheless, the practice of law is a business as well as a profession, and it is certainly influenced, if not driven, by the reality of market forces.  It could be said that the legal profession is a ‘market organisation whose legitimacy rests on a social bargain’, an exchange of status and privilege resulting from intellectual and organisational standing for ‘ethical and altruistic service’ (Joanne Bagust, ‘The Legal Profession and the Business of Law’ (2013) 35 Sydney Law Review 27, 27-28).

Professor Richard Susskind first challenged the legal profession to rethink its position in society, the nature of legal work and legal service provision, and the construct of a lawyer’s professional identity, in his work The End of Lawyers? (Richard Susskind, The End of Lawyers? Rethinking the Nature of Legal Services (Oxford University Press, 2008). His next work, Tomorrow’s Lawyers, also provokes the legal profession to engage with profound challenges to familiar ways of knowing, working and being (Richard Susskind, Tomorrow’s Lawyers: An Introduction to Your Future (Oxford University Press, 2013).

Susskind’s predictions are for significant change in the practice of law and the provision of legal services.  There may be disagreement over the detail of his forecasting, but the general direction and tenor of his arguments are compelling. Susskind has said that we are seeing the decline of the ‘Golden Age of Law’ as we have known it. New ways of working and providing legal services – ways that are more collaborative, less adversarial and more efficient – will replace the practices of the past. He predicts that our relatively staid and conservative profession will see more change in the next two decades than it has in the last 200 years. To cope with this change the profession will need to be grounded, resilient, flexible, responsive and skillful.

Simply knowing what the law is has never been sufficient for successful legal practice in any context, but these days it is even more important that lawyers have the necessary skills and attitudes – legal thinking and reasoning skills, legal research skills, communication and collaboration skills, self-regulation skills and an ethical disposition. The Australian Threshold Learning Outcomes (TLOs) for Law acknowledge this.  The TLOs were developed by Sally Kift, Mark Israel and Rachael Field in 2010 as part of the Learning and Teaching Academic Standards Project for the Australian Learning and Teaching Council (available at <http://www.olt.gov.au/resources?text=law>) and articulate what law graduates need to know and be able do. Many of these skills and attitudes are effectively taught in dispute resolution courses at Law Schools around Australia.

In the new environment of 21^st century lawyering there is no doubt that dispute resolution knowledge, skills and values are increasingly critical to effective legal practice – for lawyering that continues to uphold the rule of law whilst also responding to market pressures.

Law schools and the legal profession are still some way, however, from adequately acknowledging dispute resolution as a core element of legal knowledge and competence, central to both transactional and dispute resolution lawyering, and important to the future viability of the legal profession, not only in Australia but also globally. Most Australian law schools, for example, do not yet have a compulsory dispute resolution subject, and are creating law graduates without some of the critical skills and attitudes necessary for 21st century legal practice.

The ADR Research Network is contributing to achieving the changes that are necessary in legal culture, practice and education for the law profession’s future sustainability.