From time to time people ask how they can become members of the Australian Dispute Resolution Research Network.

FUTURE REVIEW

We are an evolving network and at the 2016 Round Table in Hobart, time will be allocated to review our current approach and make some decisions about membership and organisational structure.

CURRENT APPROACH TO MEMBERSHIP

We don’t like hierarchies or unnecessary administration, so we don’t have any membership list or legal organisational framework. The way to become a member of the ADR Research Network is to subscribe to the blog at adrresearch.net. This is our primary means of communication. Although we do sometimes email people who have attended face to face meetings, we prefer to communicate via the blog so that all interested people can view it. Therefore it’s an “opt in” membership where you control whether you’re kept informed of network activity.

• Subscription will mean that every time a post is made on the blog you will receive a notification alert to your email address.
• Other ways to follow blog activity is through Facebook “ADR Research Network” and Twitter @ADRResearch, but engagement on these platforms is not necessary to keep track of blog activity.
• You are welcome to make a guest blog post and/or request to be added as a regular contributor who can post directly. These requests can be directed to our blog editor Becky Batagol

At each annual face to face gathering, some primary responsibilities are allocated to network members for the following year. The current responsibilities are:

• Chairs – Kathy Douglas and Jonathan Crowe
• Blog Editor – Becky Batagol
• Round Table Organisers – Olivia Rundle, Kate Curnow and Sue Douglas

We hope that this clarifies our approach to membership.

Please don’t forget that abstract proposals for the 2016 Round Table are due by the end of May!

Professor Jaswald W Salacuse has published an interesting article titled “The Effect of Advice on Negotiations: How Advisors Influence What Negotiators Do” in the April 2016 edition of the Negotiation Journal. There are some interesting observations made in the article that have relevance for researchers who are analysing negotiations.

Professor Salacuse observes that:

• Theoretical models of negotiation often overlook the significant role played by people who advise negotiators;
• Advisors might include family, friends, colleagues or professionals (including, but not limited to lawyers). They may or may not be invited or appointed to give advice to the negotiator to help them decide how to deal with their problem; and
• Advisors may give advice earnestly or casually, and either kind of advice can have dramatic consequences for the way that a dispute is managed.

He recommends that when examining a negotiation, as a reflective activity or a research analysis, the role and impact of advisors on the negotiation should be routinely and systematically incorporated into negotiation planning and/or the method of analysis. Negotiators should analyse their relationship with their own advisors as well as those of the other negotiating parties. Professor Salacuse’s use of role theory also provides a framework that professional advisors such as lawyers may find useful in articulating their advisory role and style to clients. Role theory differentiates between role prescriptions (external expectations of the advisor’s role), role performance (the advisor’s actual behaviour) and role conceptions (the advisor’s perspective of how they ought to perform their role). For researchers, failing to investigate the identity and influence of advisors over a negotiation process will produce an imperfect picture. Salacuse recommends that researchers ask questions that explore: the content of advice received in relation to a negotiation, the identity of advisors and their relationship with negotiators and other participants, relationship structures, roles played by negotiators and advisors (particularly prescription and performance), resources that advisors brought to the negotiation table, means of influence employed, nature of interactions during the negotiation, and the advisor’s style.

Some of the factors that will vary include the following:

• The degree of dependence upon the advisor’s expert “repeat player” knowledge (high dependence can make it difficult to reject advice);
• The importance of role prescription (a non-professional advisor will be less constrained by this than a professional advisor appointed specifically for the purpose of giving advice);
• Whether advice is sought because of the advisor’s expertise in substance or process, or to validate a fact, policy or intention;
• Whether an advisor’s participation in a negotiation event is “ornamental” (in the sense that they are there because of their reputational capital) either wholly or in part;
• Whether an advisor’s conduct and influence over the negotiation creates a separation between the negotiated outcome and the negotiator (which can bring the authenticity of the agreement into doubt);
• Whether the negotiator seeks advice primarily to validate their own opinion (for example, a family member or friend’s validating advice may be sought because the negotiator wants them to affirm their allegiance rather than form an independent critical opinion about the subject matter of the advice); and
• The degree of confidence that the negotiator has in the advisor’s technical competence, integrity, and loyalty, which will be strongly linked with the strength of the relationship between advisor and negotiator.

Professor Salacuse describes three structural models of the relationship between negotiator and advisor, that have some alignment with my (Dr Rundle’s) models of lawyer participation in mediation. He talks about the advisor as director who “tends to take control of the negotiating process, directing the negotiator on how to act to achieve success in the negotiation” (spokesperson). The advisor as servant responds to the client’s demands and “the client fully controls the negotiation and may limit the advisor’s participation to specific questions and issues” (any of the absent advisor, advisor observer or expert advisor). The advisor as partner describes the advisors and their clients conducting a negotiation as partners, where “the essence of any partnership is co-ownership and joint participation” (collaborative participant). Of the EU advisors surveyed for Salacuse’s research, 80% indicated a clear preference for a partnership relationship with the people they advised. Kathy Douglas and Becky Batagol’s research in VCAT mediation has shown some support for the collaborative approach to legal advice giving as has Allie Bailey’s research in Roundtable dispute management at Victorian Legal Aid. However, this model is neither traditional nor typical of lawyer client relationships generally.

The article canvasses a broad range of considerations that cannot be ignored if the dynamics of particular negotiations are to be understood properly. These influential factors need to be considered carefully when educating advisors (such as lawyers) and negotiators (anyone) about their choices and behaviours in negotiation settings. They provide a useful framework for reflection for professional advisors.

One final observation from my reading of the article is that Professor Salacuse’s research method was to administer a questionnaire to a group of advisors who he was training, which invited them to assess their own advising and communication style. This self-report of “typical” practice may be useful in gathering data about advisor’s role conceptions, to supplement other data about role prescriptions and/or behaviour. It might be a useful research tool for researchers who wish to learn more about lawyers’ perspectives of their role and practice in advising clients in relation to their disputes. The survey instrument is annexed to the article. I am interested in other researcher’s views about it (but of course all constructive comments on and contributions to this blog are always warmly welcomed).

There is a tendency for those dispute resolution professionals who work outside the family law field to think that family violence does not affect their work. However the recently released report of the Victorian Royal Commission into Family Violence, which was jurisdictionally unable to examine family mediation, shows that an understanding of the nature of family violence and an ability to identify and respond to cases of family violence is central to the work of dispute resolution practitioners in a number of diverse fields. We focus here on the recommendations which will affect the way in which a range of dispute resolution professionals will have an ongoing role in dealing with the consequences of family violence in our society.

Many of the recommendations and much of the report will be of interest to those in the broader Australian dispute resolution community.

The Royal Commission’s Report

On 30 March 2016 the Victorian Parliament tabled the report of the Royal Commission into Family Violence. The report represents the culmination of 13 months of work by Australia’s first ever Royal Commission into family violence. The Victorian government set up the Royal Commission to examine and evaluate strategies, frameworks, policies, programs and services and establish best practice for four areas – the prevention of family violence; early intervention; support for victims of family violence, particularly for women and children; and accountability for perpetrators of family violence. The Royal Commission was also asked to investigate means of ensuring systemic responses to family violence, investigate how government agencies and community organisations can better integrate and coordinate their efforts, and make recommendations on how best to evaluate and measure the success of strategies and programs put in place to stop family violence.

Although the report and recommendations are framed to apply to the state of Victoria, the findings are highly relevant to every State and Territory, which all face the difficult task of dealing with increasing reports of family violence. Many of the recommendations ask the Victorian government to liaise with the Commonwealth government and COAG (the Council of Australian Governments) to reform aspects of law and policy in other States and Territories and nationally to better protect the victims of family violence and ensure perpetrator accountability. COAG has also just released a report advising it on a national approach to reducing violence against women and their children.

Report Recommendations

The Royal Commission’s report contains 227 recommendations.  The Victorian government has committed to implementing all recommendations in the report, regardless of the cost. The Commission stated that its ‘recommendations are directed at improving the foundations of the current system, seizing opportunities to transform the way that we respond to family violence, and building the structures that will guide and oversee a long-term reform program that deals with all aspects of family violence’ ( p.14 Summary and Recommendations).

Key recommendations include:

• the establishment of local support and safety hubs to make it easier for victims to find help and gain access to a greater range of services
• new laws to ensure that privacy considerations do not trump victims’ safety—with a Central Information Point to funnel information about perpetrators to the Hubs
• an immediate funding boost to services that support victims and families, additional resources  for Aboriginal community initiatives and a dedicated funding stream for preventing family violence
• a ‘blitz’ to rehouse women and children forced to leave their homes, supported by expanded individual funding packages
• an expanded investigative capacity for police and mobile technology for front-line police, including a trial of body-worn cameras
• more specialist family violence courts that can deal with criminal, civil and family law matters at the same time
• stronger perpetrator programs and increased monitoring and oversight by agencies
• family violence training for all key workforces—including in hospitals and schools
• investment in future generations through expanded respectful relationships education in schools and
• an independent Family Violence Agency to hold government to account.

Dispute Resolution and Family Violence

There are a number of ways that dispute resolution plays a role in our response to family violence: through provision of family dispute resolution in the federal family law system, through child protection conciliation conferences in the state Children’s Courts, through the negotiation process that takes place in finalising the conditions of family violence orders in state magistrates’ courts, and in resolving disputes with providers of essential services, such as electricity, water, banking and telecommunications, as a result of economic abuse. Although not strictly a civil dispute resolution process, there are also possibilities for the use of restorative justice processes as an adjunct to the criminal and family violence system.

Elsewhere on this blog I have described my own journey as a feminist from polemical critic to designer of a safe(r) mediation processes for women who have experienced family violence. As I have written previously, there is a legitimate concern about the use of informal dispute resolution processes in cases of family violence because of deep power imbalances between perpetrators and victims. It is now more widely accepted, however, that with appropriate support and careful attention not to minimise the violence, family law disputes which involve family violence can be mediated. Outside the family mediation context, the same debate about the use of private ordering in cases of family violence could be had in relation to family violence intervention orders or child protection matters.

The Royal Commission’s family violence report canvasses several of these arguments plus more in a range of areas of policy, law and practice relating to family violence. The Royal Commission, being a Victorian institution, was not able to examine family dispute resolution directly (which is a federal process).

The central issues raised by the Royal Commission which relate to dispute resolution are summarised briefly here.

Dispute Resolution and Family Violence-Related Debts

Recommendation 110 of the Royal Commission’s report reads as follows:

The Victorian Government encourage the Victorian Energy and Water Ombudsman and the Commonwealth Financial Services Ombudsman and Telecommunications Ombudsman to publicise the availability of their dispute-resolution processes to help victims of family violence resolve disputes with service providers in relation to debts and liabilities incurred in the context of family violence [within 12 months].

This recommendation concerns family violence-related debt. The Commission heard that most women who seek assistance for family violence issues leave their relationship with debt. Through the use of deception or coercion, perpetrators may avoid responsibility for a range of debts and leave their former partners with substantial liabilities (RCFV Report, Volume IV, chapter 21 p.102). This is a form of economic abuse, which is increasingly recognised as a form of family violence across the Australian jurisdictions.

Women who have family violence-debt often have trouble negotiating the consequences of that debt with service providers. In their report Stepping Stones: Legal Barriers to Economic Equality After Family Violence, Women’s Legal Service Victoria noted that ‘service providers such as energy retailers, telecommunication services and banks have low awareness of the difficulties faced by women experiencing family violence and are unhelpful when interacting with these customers.’ Professor Roslyn Russell has recently shown how staff in bank branches and call centres, report dealing with customers who are experiencing, trying to leave, or have left abusive relationships, yet there is limited training for banking staff on family violence.

A major proportion of Australia’s dispute resolution services are offered through industry ombudsman and complaint handling services such as the Victorian Energy and Water Ombudsman and the Commonwealth Financial Services Ombudsman and Telecommunications Industry Ombudsman. These services often use a combination of mediation, negotiation and conciliation to resolve disputes. It is clear these services are dealing with many disputes that arise with service providers as a result of family violence. Because such services are not part of the family violence system they may not have policies or training in place to identify or adequately address financial abuse and family violence. The Royal Commission’s recommendation is designed to develop employees’ capacity to understand, identify and respond to family violence within industry dispute resolution schemes so that victims of family violence can continue to access essential services such as household energy, water, telecommunications and financial services.

Negotiating Consent Orders in Family Violence Intervention Order Processes

Family Violence Intervention Orders (FVIOs) (also known as protection orders and apprehended violence orders in other jurisdictions), are orders made by the courts to protect a person from another family member who is perpetrating family violence. There are often conditions attached to FVIOs which set out exactly what the perpetrator must do or not do in order to stop committing, and to prevent the future commission of, family violence. In Australia, FVIOs are made by state Magistrates’ courts. The Royal Commission noted that ‘a high proportion’ of FVIOs are made by consent which means that the parties to the intervention order agree themselves to the FVIO and the conditions attached to the order which the Magistrate merely formalises (RCFV Report, Volume III, Chapter 16, p.134). There is an incentive for perpetrators to settle orders by consent in the Victorian system because they can be made without the perpetrator admitting to any or all of the family violence allegations set out in the FVIO application. However for victims, there is a clear danger inherent in the negotiation process for consent orders, as described by the Commission:

‘the negotiation process involved in arriving at an order by consent may be opaque and variable depending on the situation, the parties and the presence of legal representatives. If there is a history of family violence between the parties, with everything that can entail – including an imbalance of power, fear, vulnerability, and the possibility of manipulation and coercion – it is extremely important that the negotiation process is properly managed. If the parties are not (or not adequately) legally represented, there is no guarantee that this will occur, and the result can be incomplete or inappropriate orders, whether on a primary application, a variation, extension or withdrawal, or a cross-application’ (RCFV Report, Volume III, Chapter 16, p.178).

Mediation is not formally part of the process for negotiating FVIOs in Victoria, although it is in the ACT. The danger of any negotiation process used to determine the terms of FVIOs is that it is the very acts of family violence that are being discussed and negotiated, and that a poor process may result in a poor order with conditions that fail to protect the victim and her children. Because so little is known about the process for negotiating consent orders for FVIOs in Victoria, the Royal Commission adopted a cautious approach and recommended that a committee be established within the next three years to investigate how consent-based family violence intervention orders are currently negotiated and to develop a safe, supported negotiation process for victims (recommendation 77). On this issue, the parallels to family dispute resolution are clear. Of note is the safe and supported negotiation process developed by Women’s Legal Service in Queensland called Coordinated Family Dispute Resolution (CFDR). I co-designed that model of family dispute resolution and co-authored an article about CFDR.

Restorative Justice and Family Violence

Restorative justice is a process which was developed from the criminal justice system which enables all parties who have a stake in an offence to come together to discuss the aftermath of the offence and implications for the future. While restorative processes have a criminal provenance, which makes them distinct from ADR processes such as mediation and conciliation, the processes share in common a commitment to party empowerment and a sense that creative solutions can be found through ‘talking it out’ which would not be possible in the formal legal system.

The Royal Commission noted that while the justice system plays a fundamental role in protecting victims’ safety and promoting perpetrator accountability, that many women find the reality of the court process to be deeply dissatisfying and even re-traumatising: ‘A strong theme that emerged from consultations held by the Commission was the need for victims to understand the options available to them, and the process involved, and to be empowered to make their own decisions about what steps and outcomes are appropriate’ (RCFV Report, Volume IV, Chapter 22 p.136).

Restorative justice programs have the potential to provide family violence victims with the chance to be heard, to explain to the perpetrator what the impact of the violence has been and to be empowered to discuss future needs, including any reparations. Such a process potentially places great power in the hands of the family violence victim.

However the same concerns can be raised about the use of restorative justice in family violence cases as there are about the use of family mediation in cases of family violence. The concerns about use of restorative justice in this context include unequal power relationships between victims and perpetrators, concerns about safety, and concerns about the appeal to apology and forgiveness which are part of the cycle of abuse in family violence.

The Commission concluded that restorative justice processes have the potential to assist victims of family violence to recover from the impact of the abuse and to mitigate the limitations of the justice system (RCFV Report, Volume IV, Chapter 22 p.143). The Commission recommended that within two years a pilot program be developed for the delivery of restorative justice options for victims of family violence which would have victims at its centre, incorporate strong safeguards, be based on international best practice, and be delivered by appropriately skilled and qualified facilitators (recommendation 122).

A dispute about the extent to which an employer can sanction an employee for the content of their personal social media posts made outside work hours has been settled on the eve of hearing in the Federal Court. This provides a useful opportunity to reflect upon two matters:

• The impact of dispute settlement on the development and clarification of the law; and
• The persistence of last minute settlement in litigated matters.

Brave and innovative thinking is needed to address both of these issues.

Background

(Background sourced from: New Matilda, Sydney Morning Herald, Conversation and Corrs blog)

On ANZAC Day 25th April 2015 Scott McIntyre published four tweets that expressed his personal opinions about ANZAC soldiers’ war crimes during WW2. The tweets were noticed by some commentators, and there was wide condemnation including from federal government ministers and Mr McIntyre’s employer, SBS, who terminated his employment 12 hours after his tweets. One month later Scott McIntyre lodged an unfair dismissal claim with Fair Work Australia. His employer argued that McIntyre’s employment had been terminated because he had breached the network’s social media policy by refusing (upon request by his employer) to “delete a series of inflammatory tweets and publicly apologise.” If the matter had gone to hearing, as it was scheduled to on 11 April 2016, some interesting legal questions about whether or not the termination was lawful were likely to be raised by McIntyre’s legal team.

Originally, McIntyre’s argument was that SBS had discriminated against him on the basis of his political opinion contrary to s 351 of the Fair Work Act 2009 (Cth). Following conciliation proceedings at the Fair Work Commission in July 2015, McIntyre abandoned his s 351 claim, because it was recognised that it could not succeed. (Without going into detail here, essentially, the required basis for the claim under NSW law did not exist). It should be noted that the exposure of the flaw in the claim in itself was a useful outcome of the conciliation conference. Efficiency and justice was promoted by serious consideration of the claim by both parties and an exchange of views about its legal basis.

McIntyre decided to pursue an alternative claim for unlawful termination under s 773 of the Fair Work Act 2009 (Cth). An application was lodged and leave sought to pursue this alternative cause of action out of time. SBS resisted this application, but in October 2015 the Fair Work Commission  rejected SBS’s arguments and determined that McIntyre could pursue his new claim. The matter commenced in the Federal Court, there was at least one court event in December 2015, and it was set down for a three day hearing in April 2016. The parties settled the day before the scheduled start date.

Significant Legal Questions

McIntyre’s lawyer Josh Bornstein tweeted on the day after the settlement “It has been a privilege to have represented @mcintinhos & settling his important case about free speech.” A determination of McIntyre’s claim would have provided better guidance to employers and employees about the boundaries of appropriate social media activity and employer responses to employee’s private expressions of their political views. In May 2015, Professor Joellen Riley noted that McIntyre’s case would test the applicability of old law in the age of social media:

Once upon a time, long, long ago, and before social media all but obliterated any boundary between public and private lives, a judge in Australia said (in Australian Tramways’ Employees Association v Brisbane Tramways Co Ltd (1912) 6 CAR 35) that a person may wear, worship or believe whatever one chooses, in matters not affecting work.

The boundary between the employment and private sphere has broken down almost irretrievably for most workers, particularly in fields such as journalism, where employees are expected to engage on social media and to build a public profile that will benefit their employer. Most organisations have social media policies, and the case would have tested the interaction between the employee’s freedom of political expression and such policies.

For dispute resolution practitioners and scholars, the settlement of what would have been an important case reminds us of the public function of our judicial system in providing clarity to citizens about acceptable standards of behaviour.

The terms of the settlement between McIntyre and SBS are private. The questions that would have been determined by the court in the case remain arguable, meaning that other employers and employees are no better placed to predict how the courts would view their actions.

The concern that settlement has an impact upon the development of the law has been voiced throughout the development of the modern dispute resolution field (notably, Owen Fiss in his 1984 article “Against Settlement”). Most matters have always settled, because individuals seek to avoid the risks and costs of engaging in the entire formal legal process. Dominique Allen has noted that discrimination law is a relatively new area of law, largely statute based, and relies upon the judiciary to give guidance about the meaning and application of the statutory provisions, which means that confidential settlements pose a problem in delivering the behavioural guidance that the law is intended to provide (Dominique Allen, “Against Settlement? Owen Fiss, ADR and Australian Discrimination Law” (2009) 10(4) International Journal of Discrimination and the Law 191, 199). Perhaps more attention could be paid to the question of whether there are alternative ways of clarifying the law and delivering justice. Consideration of ways to achieve the benefits of judicial determination, while avoiding the costs to the individuals whose dispute raises important legal questions, may be long overdue. Sometimes dispute resolvers find themselves advocating for dispute resolution as the better process than trial, and engaging in advocacy against trial. But a less adversarial approach to the conversation can support being “for settlement” and “for litigation” (see Michael Moffitt, “Three Things to be Against (‘Settlement’ not included)” (2009) 78(3) Fordham Law Review 1203). There is a need for the litigation process to be critically examined and for means of improvement to be identified. Perhaps dispute resolution scholars, with a penchant for radical non-attached and creative thinking, have something to offer in the innovative justice space?

Last minute settlement

The fact that McIntyre and SBS settled his claim is unsurprising, given the personal costs and risks involved. It is less clear why the settlement was reached at the last minute. It did not occur until after considerable expense had already been incurred by the parties and all of the preparation for the hearing was complete. In that sense, the cost savings to the individual parties were not as great as they might have been had serious settlement negotiations resolved the matter earlier.

As an outsider, it is impossible to know what kinds of negotiation events occurred between the Fair Work Commission’s hearing on 12 October 2015, which confirmed that McIntyre could pursue his claim, and 11 April 2016, when it was announced that the matter had settled. I can hazard a guess that the legal practitioners and their clients may not have had serious and comprehensive conversations about the risks, costs and complexities of going ahead with the hearing until late in the process. For Mr McIntyre, succeeding at the hearing would have brought a considerable sense of justice, but the risk of losing would place him at risk of an adverse costs order. A loss for SBS at the hearing would have included having the details of their decision making in dismissing McIntyre played out in public, and used as an example of what not to do when dismissing employees. The risks and costs could have been understood, considered, and weighed well before the eve of trial. It is true that imminent time pressure does present a part of the persuasion to settle. However, there is a need for innovative thinking about how to create a culture of serious attention to settlement before parties have had significant costs incurred at their expense.

No doubt the time pressures of operating a busy litigation practice mean that only the most urgent of matters receive attention from litigation lawyers. This is why court-connected mediation has succeeded by creating a negotiation event earlier in the litigation process that makes attention to settlement more “urgent” than it would otherwise be. Mediation has not increased the rate of settlement, but it has created an incentive for earlier settlement of cases destined to settle on the steps of court. At the end of the day, the people who benefit most from last minute settlement (as opposed to settlement at an appropriate earlier stage), are lawyers, and this is the great conflict of interest inherent in litigation practice. Perhaps there are more innovations that could be introduced to create incentives for further change to culture and practice? 

The Australian Dispute Resolution Research Network is pleased to be hosting its fifth annual research round table in 2016. The Round Table will be held from Friday afternoon 9th until midday Sunday 11th December 2016 at the University of Tasmania in Hobart. This announcement invites researchers to submit proposals for papers to be included in the Round Table programme. The ADRRN Round Table Call for Papers 2016 contains more detail.

We welcome proposals that consider dispute resolution from a scholarly, critical and/or empirical perspective. We particularly encourage submissions from postgraduate students and early career researchers. All proposal will be considered. Papers must not have been published or submitted for publication, as the focus is work in progress.

There will be a limit to the number of papers able to be part of the round table discussions. A panel will select round table papers from abstracts submitted. The aim is to be as inclusive as time and numbers allow. The following selection criteria will be applied:

• Papers take a scholarly, critical and/or empirical perspective on an area of dispute resolution;
• The round table will include a spread of participants across stages of career; and
• A well-balanced range of work will be presented at the round table to provide diversity, to develop the field and to enable cohesive discussion.

Deadline for paper proposals:   30 May 2016

Attendance at the Round Table is only open to individuals who are contributing to the scholarly discussions by presenting a paper, or commentating and/or chairing a session. Participation is on a self-funded basis.

For further information, please:

• Read the full Call for Papers ADRRN Round Table Call for Papers 2016
• Contact the conference convenors Olivia Rundle, Sue Douglas and Kate Curnow via adrresearchnetwork@gmail.com (monitored twice weekly)