Yesterday I had the pleasure of listening to a Three Minute Thesis presentation by one of our higher degree research students who is exploring Bedouin customary legal practices and processes in Jordan. It caused me to reflect on the indigenous origins of many ADR processes and also the importance of  identifying where these community practices still exist, understanding how they work, and exploring their contemporary power and potential

Munther Emad describes his PhD project as follows:

“There are a range of Bedouin customary law practices in Jordan and other Arab societies, including neighbourhood groups, delegations of wise elders delivering oracles to assist community groups to resolve their own disputes, victim-offender mediation, tribal councils and inter-tribe negotiations. These differ between Bedouins in the Negev-Naqab desert and urban dwellers in Middle Eastern cities. Some of these have similarities to restorative justice practices in that they operate on the margins of or outside the official legal process, they confront the offender with the victim, include community representatives, explore outcomes that restore social harmony and involve participants in decision-making. They deal, in varying degrees, with concepts like repairing the harm, facing up to crime and collective responsibility.

The purpose of this research is to examine the system of Bedouin customary law practices particularly within the context of ‘Jordanian model’ in terms of how they operate and evolve in contemporary society. The research utilises the lenses of ‘restorative justice’, ‘legal pluralism’ as well as ‘access to justice’ in order to critique Bedouin customary law and predict the prospect of these practices in the future of both Jordan and the Middle East. For this reason, this research draws on the lessons learnt around the world with regard to how indigenous customary laws are currently being utilised. The narrative of this research is articulated through a storytelling style in order to best describe the nature of Bedouin customary law, thus a number of stories are utilised throughout the research. It also involves explaining the features of Bedouin customary law ‘in the shadow of the law’, supplemented by ethnographic observations and interviews with a diverse group of community leaders.”

Munther’s research has the potential to contribute to our understanding of how and why these processes work in a contemporary setting and to consider their continuing relevance.

Closer to home there is a growing understanding of Aboriginal dispute resolution practices, documented by NADRAC in its 2009 report Solid Work You Mob Are Doing: Case studies in Indigenous Dispute Resolution & Conflict Management in Australia and illustrated in the “Solid work” Indigenous Mediator Forum by Maureen Abbott, Sharon Anderson, Helen Bishop, Nelson Mungatopi, Kurt Noble & Madhu Panthee at the 2014 National Mediation Conference.

The peaceful resolution of conflict is also deeply embedded in Islamic religious texts and practices. We need to better understand these parallel systems and how ‘Australian Muslims can better navigate their way through the two legal settings that they wish to comply with’, and to explore how  family dispute resolution process might be adapted to meet their needs, as Ghena Krayem argued in her 2014 empirical study  Islamic Family Law in Australia.  These processes are not without their risks and challenges, as Sami Bano has documented in her 2012 research Muslim Women and Shari’ah Councils, Transcending the Boundaries of Community and Law.  Marion Boyd’s 2004 report Dispute Resolution in Family Law: Protecting Choice, Promoting Inclusion  of the Canadian debates about these matters demonstrated that the issue is fraught and contentious, and there may not be much appetite for publicly canvassing these matters currently. However, there is potential for considerable professional and community benefit in exploring if and how community, indigenous, religious and mainstream dispute resolution practitioners might learn from one another.

The July 2016 NSW Law Society Journal carries an interview by Julie McCrossin with the very accomplished Professor Larissa Behrendt, Chair of Indigenous Research at the UTS Jumbunna Indigenous House of Learning.

The article begins by reminding us that Behrendt is a storyteller and indeed she is. Talking about stories as a tool for justice, she comments that part of the significance of her work is to demonstrate that ‘there is such as important role for storytelling to play in law reform’.

To illustrate her theme, Behrendt draws on the recent request to the New South Wales Attorney General, by the Police Taskforce working on the Bowraville cases, to make an application to the Court of Appeal seeking to quash the acquittal and advocating a new trial.

Achieving this has been a long road and Behrendt (who worked with the Bowraville families at Jumbunna) credits the outcome as the triumph of storytelling over legal argument.

She says

‘There is such an important role for storytelling to play in law reform. As lawyers, we are so good at thinking about legal arguments, but there are so many things I have learnt from the Bowraville families and one of those things is that their stories are more powerful than my law’.

The story is compelling reading – not just for the insight into Behrendt’s work with indigenous families. It is a reminder to those of us practising and researching in the ADR field that storytelling offers power to persuade in circumstances where facts have been unsuccessful.

The early champions of ADR did us a great disservice when they promoted a benefits bundle of cheap and quick. We continue to suffer the consequences of this error of judgement. The proliferation of ADR services that are cheap and quick has left many disputes unresolved despite their advocates recording that they have been ‘settled’.

Reading the daily newspaper reports of the coronial inquest into the Lindt café siege should be all the proof we need that stories can achieve what facts cannot. All of us are stakeholders in this inquest. Indeed there are so many stakeholders that the inquest now has its own web address http://www.lindtinquest.justice.nsw.gov.au/.

One of the reasons the inquest has been continuing for such a long time (since it began in May 2015) is that, apart from seeking factual evidence about what happened, there is a lot of healing that can’t happen until we have exhausted the well of stories that need to be told. Initial attempts to make this an efficient process have given way to entreaties from the public and the families of the hostages and the hostages themselves. One of the most tragic and consistent themes from the stories of hostages is that they felt abandoned and believed that no-one was ever going to come to their rescue. If changes are to come to how police deal with hostage taking and hostage takers, it won’t be as a result of the forensic examination of the facts – it will be because of the extraordinary power of the hostages’ stories and the resulting damage to public confidence in the police to rescue us from harm. This will be the driver to force the police and government to do things differently and better.

Although stories like Behrendt’s are all around us, reminding us of the power of story-telling, sadly, the ADR processes that are happening in the shadow of the law have seemingly adopted the fact based approach that characterises litigation. A review of position papers commonly exchanged by lawyers prior to mediation makes it abundantly clear that much of the mediation world in the hands of lawyers is just litigation in another forum. It is disappointing to see the promise of mediation so consistently frustrated. Surely we recognise by now that while facts matter, ADR provides a golden opportunity to look past the objective data of the facts to the subjective experiences of the parties.

Story-telling courses and conferences abound in law schools in America and the United Kingdom and the ABA has a number of publications devoted to this field. It is hard to find any evidence of such programs in law schools in Australia. However there are numbers of programs and conferences in the social sciences arena. Resolution Institute (formerly LEADR) has been publicising a general conference being hosted at Melbourne University in November – http://www.thestoryconference.com.au/program/

Perhaps the next step is for law schools to take a lead in influencing professional practice by partnering with other faculties (such as the program sponsored by the RMIT University School of Media and Communication) which have experience in delivering storytelling skills via experiential learning. It is time to ensure that this powerful tool of persuasion is embedded in ADR best practice.

A recent ABC radio program titled Robot lawyers could make time-consuming, expensive court conflict thing of the past outlined a brave new world where artificial intelligence technologies can ‘mediate everything’ including divorce and child custody. A Dutch program has been introduced in Canada to resolve debt and tenancy issues, and in the Netherlands it is used to sort out family law issues, including child support.  Where the matter was sensitive, it could be referred to a ‘trusted advisor’ who would act as an online mediator.

This program, and other online methods of dispute resolution, are touted as empowering clients and promoting access to justice for those who cannot afford to litigate and who don’t qualify for legal aid, and thus ultimately enhancing democracy.

The recent KPMG report for the Commonwealth Attorney General Future Focus of the Family Services  also explores the benefits of online technologies for resolving family disputes. Telephone and online dispute resolution of family disputes are already firmly embedded in family services provided to rural and remote clients, and the report notes that in an increasingly digital world, ‘agencies and their providers can adapt and use technology to engage with citizens in shifting business models from reactive, to proactive or customer driven’.  Digital or online services may enhance accessibility for people in remote locations, but also benefit shift workers, at home parents, those at risk of violence and people with disabilities, the report argues. There is no doubt there is enormous potential here for greater access and immediacy, and for reducing costs for the community and disputants, and even for promoting safety, but there are also risks that need to be carefully evaluated.

The issues relating to online dispute resolution are not dissimilar to those associated with dispute resolution generally, although the online context may exacerbate or minimize some of these risks. The National Alternative Dispute Resolution Advisory Council considered some of these in 2002 in its Dispute Resolution and Information Technology Principles for Good Practice. Using the framework often used for evaluating dispute resolution it discussed some of the risks:

• Accessibility: whilst access will be enhanced for some, some who are vulnerable may not be able to access such resources or the tools to access them, especially those with low literacy, older people, from some cultural communities. The access of those in rural and remote areas will depend on the reliability of high bandwidth telecommunications.

• Fairness: NADRAC notes ‘Information technology may neutralise some sources of power through removing some of the dynamic associated with face to face communication.’ Some parties may be empowered, but in other situations power imbalance may be created or exacerbated. Those unfamiliar with the technology may be pressured into decisions. Men, who often communicate for factual information, may be favoured over women whose communication preference is generally relational, as this may not be well supported by online technologies. Where parties are remotely located one or both may ‘more effectively mask their feelings, delay responses or manipulate the environment’, and the mediator not be able to respond appropriately or even handedly if they are not able to read the parties as effectively as if they were in the same room. It may be more difficult for the mediator to establish impartiality and trust in an online context.

• Effectiveness: this begs the question of effectiveness for whom? From a party perspective, online DR may be quick, accessible and cost effective, and ‘cheaper’ justice is also a positive community outcome. If self determination is the key objective of mediation, then online communication may sometimes facilitate this (it may assist parties to slow down, reflect and focus on issues rather than personalities, and feel safer) or obstruct it (because nuance is lost, complex emotions not conveyed, or communication is stilted or constrained, and a sense of finality and formality absent). If the full communication and closure is not achieved, then outcomes may also be compromised.

So whilst there are benefits to online dispute resolution, and even robotic determination of disputes, we must ultimately consider whether these processes are likely to achieve party self determination. Self determination assumes the parties are autonomous and rational decision makers. Participation is voluntary and direct, and the parties control the content and outcomes where they make voluntary, consensual and informed decisions. The degree of voluntariness will vary depending on the legal frameworks governing the dispute. Informed consent will be achieved if online dispute resolvers, including robotic ones, and service providers can ensure:

• parties are educated about the nature, purpose and processes of the dispute resolution and any factors that will affect the process;
• that parties understanding this information; and
• that the dispute resolver continues to monitor party consent, especially if either is unrepresented, or if their capacity or autonomy is compromised or influenced in some way, or where their participation may not be voluntary.

If these standards are able to be achieved, then online dispute resolution may be able to achieve it’s participatory, cost saving and self determinative goals.

This post has been contributed by Dr Olivia Rundle and Dr Brendan Gogarty, of the Faculty of Law at the University of Tasmania.

Dr Olivia Rundle made a presentation at the Australasian Legal Teachers Association Conference 2016 about a Teaching Development Grant project that she is working on together with Dr Brendan Gogarty, and Alex McKenzie, a Tasmanian legal practitioner. Our project concerns the meaning of Australian Law Threshold Learning Outcome (TLO) 5(b), which states that “graduates of the Bachelor of Laws will be able to collaborate effectively.” By contrast to Australia, there are no standard learning outcomes prescribed in New Zealand, and the Faculty of Law at the Victoria University of Wellington (where the conference was held) states that its graduates “should have an understanding of the need for collaborative and cooperative behaviour in professional life.” Framing the graduate attribute in this way does not require the VUW Faculty of Law to assess students’ ability to collaborate, merely their awareness that it is needed in practice.

We want to unpack what TLO 5(b) actually means in the context of legal practice. Our project will inform our practice-centric teaching programme at the University of Tasmania.

Relevance to Dispute Resolution Research

The ability to collaborate effectively – or “work well with others” – is a foundational skill that is applied in dispute resolution contexts. Lawyers frequently engage in activities that contribute to the resolution of their clients’ disputes in the ordinary course of legal practice. Dispute resolution research will benefit from an improved understanding of the way that lawyers collaborate in general legal practice.

Do lawyers collaborate?

One of the reasons the TLOs have not been adopted as pre-admission requirements by Law Admission Authorities is that some senior members of the legal profession expressed concerned that many successful lawyers would not meet the threshold standards. In particular, the ability to “collaborate effectively” was singled out as something that many exceptional lawyers “do not, cannot or are not inclined to” do (Justice Slattery quoted in Steel, Huggins and Laurens). The immediate response of many practitioners we’ve talked to so far has been: “lawyers don’t collaborate”.  That seems to be a relatively widely held view (although not universal).

We are confident that the ability to collaborate effectively is an inherent requirement that all lawyers need, despite such claims from within the profession. Forms of direct and indirect collaboration in legal practice include: intra-firm collaboration, between lawyers (especially within the hierarchical nature of firm structures ) as well as between lawyers and other professionals working in the firm (i.e. conveyancers and administrative staff); inter-firm collaboration; between lawyers on either side of a dispute; intra-professional (solicitor to barrister); inter-professional (between lawyers and officers of the court, experts, medical professionals, accountants etc); and of course with the client.

Particular influences on collaboration in legal practice

There are some features of legal practice that have an impact upon the need for lawyers to collaborate effectively. These include joint and several responsibility and the obligation to provide legal representation within firms. Other features of legal practice can have a negative impact upon lawyers’ collaborative behaviour. They include time billing and targets (an individual activity that works as a disincentive to working with others within a firm) and competing responsibilities to the client, administration of justice and business partners/supervisors (these tensions push and pull incentives to collaborate).

Our teaching development project

Our teaching development grant is enabling us to investigate, evaluate, create and disseminate an evidence base and resources that support students to become competent in engaging with the unique challenges of working in teams within a firm environment. Our project involves the following activities:

1. Literature reviews of teaching standards, collaboration in legal practice;
2. Audit of collaborative learning activities, assessment tasks and instruction;
3. Liaison with students, legal professionals and teaching experts.

Part 3 will include a focus group with Tasmanian legal practitioners where we will ask them to discuss questions that will reveal how they collaborate with other people in the course of legal practice within firms, with clients, with other lawyers and legal institutions, and with non-legal professionals.

I recently attended the Australasian Law Teacher’s Association Conference (ALTA) hosted by the Victoria University of Wellington, in New Zealand. This is the first of a series of posts about dispute resolution research that was presented at the conference.

Dr Grant Morris

Dr Grant Morris is a Senior Lecturer at the Victoria University of Wellington’s School of Law. Grant’s dispute resolution related
research is in the negotiation and mediation spheres, and is no doubt influenced by his interests in legal history, education and law and literature. In 2013 he published an article “Towards a history of mediation in New Zealand’s legal system” (2013) 24 Australasian Dispute Resolution Journal pp 86-101.

The research project

The work that Grant presented at the ALTA conference is an empirical study jointly funded by LEADR and VUW. The focus is commercial mediation. Grant chose this area of mediation because it is the only truly private mediation market in New Zealand. Other markets (such as family and employment law mediation) are controlled by the state through statutory or funding regimes. That control influences whether and how mediators, lawyers and parties engage with the process and one another.

The question that inspired part two of Grant’s four stage empirical study is whether commercial mediators are right when they perceive lawyers to be a barrier to mediation. Grant took this anecdote and his research tested it with empirical evidence. The project is being rolled out in four stages, gathering data from mediators, lawyers, parties (actual and potential) and the courts. Grant presented his findings from his survey and interviews of commercial mediators at the 2015 ‘kon gres in Auckland and presented his report to the Wellington Chapter of the Resolution Institute.

Findings from commercial lawyers

Grant’s ALTA presentation focused upon the findings from his surveys and follow up interviews of commercial lawyers in New Zealand. The report from this stage of the study was published in June 2016. He summarised his conclusions:

• Commercial lawyers know about mediation;
• Commercial lawyers are generally supportive of mediation, but on their own terms;
• Commercial lawyers do not support the idea of mandatory mediation (New Zealand courts do not have power to order litigating parties to attend mediation in commercial matters);
• Commercial lawyers have an overwhelming belief that they are contributing positively to the process and do not undermine mediation;
• Clients are believed to have limited knowledge about mediation and to rely upon their lawyers’ recommendations;
• Commercial lawyers have a gatekeeper role in relation to commercial mediation;
• The main reason for commercial lawyers recommending mediation is that they believe it is cheaper than litigation;
• Commercial lawyers have a preference for legally trained mediators with experience and reputation as lawyers (they should understand basic legal principles and how commerce works);
• Commercial lawyers report high mediation settlement rates and high overall quality of mediators; and
• Commercial lawyers are generally happy with the standard of commercial mediators in New Zealand.

By comparison, the mediators who were interviewed for the study had different views of lawyers depending upon whether they were “in demand” or struggling to find commercial mediation work. In demand mediators were generally happy with the market, whereas those struggling to secure work were unhappy.

The next stage of the research project

Part 3 of the project will involve a survey of users and potential users. The data from lawyers reveals the potential for better party knowledge about commercial mediation. At the moment, it appears that many parties only know what their lawyer has told them about commercial mediation. The user voice is of obvious significance in building a picture of the commercial mediation market.

Grant was asked how he will be recruiting clients and potential clients to participate in part 3 of his project. Recruitment of users to empirical dispute resolution research is often challenging. Grant is in the process of deciding upon the best way to engage users and plans to focus first on the in house context. In house lawyers are both lawyers and users, so this may be a useful first step in obtaining user views.

Grant will be making another presentation in relation to his project at the DR Research Forum at the National Mediation Conference on the Gold Coast on Thursday 15th September 2016.

Susan Armstrong recently posted about the value of research in family dispute resolution. She pointed out the benefits of research led practice.  I also advocate this approach but am researching the context of conflict in strata title (multi-owned housing) and the best ways to deal with disputes where parties live in close proximity and share assets. My research focusses particularly on the development growth in apartment towers, medium density townhouses and master planned estates.  Master planned estates often include shared assets such as a country club with pool and tennis courts.  These developments are growing in inner suburbs  in infill sites and in the outer suburbs where there may be large amounts of detached housing surrounded by medium density townhouses.

Conflict arising in apartment buildings, medium-density housing and master planned estates is an important issue as strata title developments become more prevalent in Australia. The research is also important as conflict can impact negatively on the experience of residents in these strata developments. In Victoria, the Owners Corporations Act 2006 (Vic) (‘OC Act’) provides for a dispute resolution scheme for conflicts arising in strata developments. A recent co-written article will appear soon in the Adelaide Law Review describing our research into dispute resolution under the OC Act, and in particular into the effectiveness of the model rules for dispute resolution provided in the associated regulations. The research, which was conducted in Victoria in 2011, gathered data from a range of key stakeholders in owners corporations, including 34 strata managers of owners corporations. This article reports on the range of conflicts experienced by the strata managers who participated in the study. Analysis of the data provided by the strata managers shows that difficulties with conflict and the model rules for dispute resolution under the OC Act were most evident in small and large developments. The participants most satisfied with the model rules were managers in medium-sized owners corporations. Whilst a majority of managers used the model rules, over a third used their own informal rules. These findings lead us to argue that there is a need for differentiated rules for dispute resolution that are dependent upon the size of the development. Additionally, we suggest that further research is needed into the informal rules applied by a significant proportion of managers to ascertain their effectiveness and to provide owners corporations with added choice in dispute resolution.

Given a recent review into the OC Act in Victoria we hope our research will asset in reform of the legislation. I am presenting on an associated issue at the Mediation Conference in September where I will explore what further research in this area might look like to engage OC residents in better dispute resolution design.

I have this week been attending the biannual Australian Institute of Family Studies (AIFS) Conference in Melbourne. The focus of the conference is on translating research evidence into policy and practice change. It has made me reflect on existing research bases about dispute resolution in the area with which I am most familiar: family dispute resolution (FDR) in the family law sector, and whether we sufficiently adopt an evidence based and effective approach in designing, implementing and translating research about dispute resolution .

We actually have a lot of evidence about family dispute resolution: much of it has been gathered by AIFS as part its evaluation of the impact of family law reforms made in 2006, and subsequent evaluations of the family law system.  Non-adversarial dispute resolution is now deeply embedded in the family legal system as the primary way to resolve differences following separation. AIFS research has demonstrated a lot of things about resolving disputes following separation including:

• Most (80% +) people who separate work out problems themselves, without much assistance from professionals or services;
• Those people who need assistance from professionals often have a history of domestic violence (70% +), as well as complex profiles which include the co-occurrence of mental health problems, disability, substance abuse and socio economic disadvantage;
• Satisfaction levels of people who use different dispute resolution mechanisms (lawyer negotiation, court, mediation) is often higher for mediation / family dispute resolution;
• Programs like Coordinated Family Dispute Resolution (CFDR), developed by Women’s Legal Services Qld and piloted in 5 locations across Australia, to support people with histories of domestic violence safely participate in FDR can achieve safer outcomes for parties, and facilitate participation and ultimately self determination by parties. The AIFS evaluation concluded that this program was at the ‘cutting edge’ of family law practice, not only because of it’s innovative pre-mediation processes to inform and support parties to effectively and safely participate in FDR, but because of the multi-disciplinary, multi-agency & professional collaborative case management of the CFDR cases.

However, the good results from this pilot did not mean CFDR was rolled out across the family law sector, despite that some women and children continue to vulnerable to the significant effects of violence following separation, and the failings of existing dispute resolution processes to address this need.

It seems to me that even where we have good evidence, we need to have better strategies as researchers to ensure that good ideas are more often translated into policy and practice.  The AIFS conference has demonstrated to me that advocacy and persuasive arguments are not enough, but that DR professionals (many of us lawyers) need to think strategically about how to provide evidence in a digestable and compelling form so that its chances of being adopted by policy and decision makers are enhanced. As DR researchers we need to think about:

• Embedding research in every new DR initiative we adopt or are involved in, so that from day one, we are collecting appropriate evidence of outcomes and what works and doesn’t and why;
• Be more outcomes focused – but think very carefully about what constitutes outcomes, and how do we gather data of the more subtle outcomes;
• Identify the exiting relevant research and data, preferably locating systematic reviews of such evidence which synthesise the learnings and outcomes where this exists. This is not usual practice with DR research – so how do we initiate systematic reviews, or at least shape our existing research to ensure it might inform such reviews?
• Engage with the evaluation and implementation science that charts how best to translate good ideas into practice and how to measure what works and what doesn’t;
• Consider the implications of research findings for practice, and consider how we might translate findings into policy-usable evidence briefs, rather than long reports;
• Ensure we engage and collaborate with researchers from other disciplines, and with each other, and appreciate the power and insights that come from the collective and from  thinking different to our own.

Obviously the translation of good ideas is not all about the evidence. It is often serendipity, personality and politics that play just as significant a role. But unless we are ready with the evidence in ways policy makers can grasp, our good ideas may not make the difference they ought to.