This post provides some brief, almost random, reflections on the progress of my research project which is being undertaken at the University of New South Wales. The first part of the post comprises a short description of the project and its rationale.  There is then a brief description of the methodology followed by a narrative of the empirical work done to date.  Finally, I have identified a few triumphs and challenges which have featured in the project up to this point.

The project

The research project in which I have been involved over the last eighteen months concerns the way in which lawyers have responded and are responding to the challenges presented by the introduction to mainstream justice institutions of mediation as an “alternative” means of ending disputes.

The rationale

This is an important subject for research because, in a world where the basis of our cohabitation as social beings in an ordered society is dictated within a framework of rules, rights and obligations and where there is increasing competition for increasingly limited resources, people who find themselves in conflict invariably still consult lawyers. It might therefore be considered that lawyers will continue to be gatekeepers of many dispute resolution processes into the foreseeable future.[1] Lawyers’ traditional role in the western justice system has been to advise their clients about the law and to assert or defend legal rights in courts and tribunals according to legal principles (either well established or developing) which provide predictability and certainty with respect to our rights and responsibilities.  It is an activity which has been jealously guarded by lawyers for centuries and one which assumes that disputes are inherently competitive in nature and must therefore be brought to an end by coercive determination after a decision maker has analysed the merits of competing claims and pronounced judgment.

In recent years, since it has become fashionable for scholastic learning to reach across traditional borders and embrace the wisdom offered by other disciplines such as psychology and sociology, we have learned that sometimes, resorting to the courts for an answer, whilst it may clarify people’s rights and declare the law, does not always provide a solution to the problem for which the lawyer was first consulted. Scholars from a range of disciplines including Sociology, Anthropology and Psychology, to name a few, have taught us that human conflict and dispute resolution can be understood from many different perspectives.  Conflict has been described as: “…a struggle over values and claims to scarce status, power, and resources, a struggle in which the aims of opponents are to neutralize, injure, or eliminate rivals”[2] and as a “…perceived divergence of interest, or a belief that parties’ current aspirations cannot be achieved simultaneously.”[3] It is not simply a question of applying a set of legal formula to a given problem and arriving at an answer which can be universally applied to guide people’s relationships and behaviour into the never ending future.  As the anthropologist Kevin Avruch explains, conflict is a feature of all human societies and an aspect of all social relationships. How we perceive its causes will determine the theories and practices which we adopt in its resolution.[4]

Encouraged by these developments, many academics have sought to extend this knowledge through research designed to improve our understanding of how new and more broadly based notions of dispute resolution might be engaged in conjunction with the law and the formal institutions of justice to assist people to improve the quality and experience of dispute resolution solutions.[5]

What this project aspires to achieve is to provide some authoritative research on how lawyers themselves are coping with the transition from the rule based, dichotomised practice of litigation in a competitive environment to what Macfarlane calls “the new advocacy”[6] in which lawyers will perceive their role more broadly than merely fighting on their clients’ behalf.  The “new lawyers” will assist their clients to engage with conflict and will provide their clients with an understanding of how conflict develops and evolves over time, how it is managed, how to function strategically and implement jointly agreed outcomes.[7]  The question which necessarily arises from this ambition is how lawyers will fill this new role and how they will become equipped and acquire the skills necessary to provide this support.

Methodology

Adopting a qualitative methodology and armed with a list of questions which form the basis of a semi-structured interview, I have embarked on the task of asking lawyers what they think about their role as lawyers, how they perceive the idea of settlement, the extent of their engagement with “non-legal” issues such as emotional and economic interests and when they think that cases should be referred to ADR including, specifically, mediation. I am also asking lawyers some cultural questions about how they perceive the effect on their reputations of engagement with dispute resolution and what values and attributes they perceive to be necessary in aspiring young lawyers.

Reflecting on the work of other researchers (particularly Zariski) it seemed to me that an enquiry of this kind would not be well served by a quantitative survey seeking specific responses to predetermined questions followed by a statistical analysis of the results returned.

In the first place, the available information suggested that the legal community is “surveyed out” and suffering from “survey fatigue” which increases the likelihood of a low response rate and reduction in the validity of the data when considered as a statistical representation of a wider population.

Secondly, and a related issue, is that it was considered that a personal meeting with the respondents would provide an opportunity for the researcher to engage with the respondents in a manner which would encourage them to be more responsive to the study and to be more forthcoming and sincere in their responses to the survey questions.

Thirdly, given the broad range of factors which might influence lawyers in their thinking about mediation and its relationship with legal professional culture, it was considered that a more qualitative approach was justified. This is because the subtle nuances of professional practice cannot always be accommodated by a survey questionnaire and it was considered that the respondents should be given an opportunity of “venting” in a way that cannot be achieved by ticking a box.

Whilst the study is still in its infancy (seven interviews having been conducted and transcribed), there are some clear themes emerging and some challenges to be overcome.

Some emerging themes

Dealing firstly with the emerging themes, it should be said that the lawyers to whom I have spoken are far from being a homogenous group. Some are commercial lawyers who act either for plaintiffs or defendants in a variety of commercial causes. Some are family lawyers and some are personal injury lawyers.  One is a workplace relations lawyer who acts both for employers and employees and another is an in-house lawyer who acts only for his underwriter employer as a defendant in professional indemnity insurance claims.   One is employed by a large national law firm.  The others are employed mainly in small to medium sized regional law firms in the Newcastle and Lake Macquarie regions of New South Wales.  All were familiar with facilitative mediation and some had attended numerous mediation events as lawyer advocates, although some were also largely unaware of other forms of ADR such as early neutral evaluation.  A number of respondents were themselves accredited mediators.  In those cases, respondents were asked to consider the questions from their perspectives as lawyers rather than as mediators.

All respondents to date have been gracious in giving up their time for the interview and no interview has been conducted under pressure of the lawyer’s time or haste due to the need to meet other commitments. All respondents have been forthcoming with their personal views which, in some cases, have been expressed strongly and in some cases with surprising frankness regarding some quite sensitive personal issues.

As might be expected in a study which involves a large measure of self-reporting, all respondents have reported positively in relation to the idea of mediation, though there were significantly divergent views about the efficacy of mediation and how the process ought to be run.  A recurrent theme throughout has been a criticism of the facilitative nature of mediation and the absence of coercive pressure from the mediator to settle.  Speaking of his view of how mediation ought to be conducted, one respondent had this to say:

I want a mediator who is going to be proactive in resolving the issues. They are the ones who are successful and they are the ones who …….They are the ones who have results and some satisfaction between the parties and you really need to push hard to get a settlement.

Another respondent said this:

I have a view that it’s good for the mediator to have a view. I think that one of the first things that’s taught to mediators at mediation school is not to have a view – they are just there to facilitate the parties coming together….And I am quite happy to pay all the money to get a mediator who will have a view and who will be respected, such as a retired judge or retired senior counsel or, they don’t have to be a senior counsel, but have been a barrister for a long time. And I certainly believe that to express a view a mediator needs to express the view in a controlled way but I am of the view that mediators with a view are very helpful to the resolution.  If a view is expressed in the right way at the right time it is very helpful.

It is too early in the study to draw any firm conclusions about the underlying assumptions which underpin these sentiments. However, it is noteworthy that criticisms of mediation theory and the facilitative nature of dispute resolution in general were invariably cast in the language of distributive or ‘zero-sum’ bargaining.[8]  In response to questions asking about what matters should be considered in formulating resolution proposals, most respondents spoke of “the range” or the anticipated determination should the matter run to trial.  It was only later when the interrogator asked specifically about non-legal issues, that some respondents were prompted to introduce a conversation about emotional concerns, litigation stress, financial anxiety, appetite for risk, health issues and other contextual concerns which are implicit in most cases of conflict.Even then, those concerns were usually introduced in a distributive manner and equated with a direct cost or at the expense of what a client might otherwise have expected to receive “within the range.”

That is not to say that legal matters should be disregarded. Clearly, when a case is being litigated one of the major concerns of the parties must be what will happen if they fail to reach agreement and the case has to be determined.  However, the point here is that most respondents showed a tendency to be preoccupied with the anticipated court outcome and this may have had the effect of excluding from their consideration other potential extra-legal solutions which might have been available in a mediation or other ADR process.

Triumphs

Even at this early stage of the study, it is possible to identify both some triumphs and some challenges. Assuming the glass to be half full, let us look briefly at some of the triumphs.

It is important in any qualitative study which comprises personal interviews that the interviewer is able to prepare well for the interview, manage the interview capably and confidently, engage with the respondent and ask meaningful and thought provoking questions which will elicit the sort of information which is required to give meaning to the study. None of this comes naturally. It is a learned skill which is acquired only with practice and reflection.  Even after thirty years of legal practice in which many hours of professional time were spend interviewing people in various situations for different purposes, it was nevertheless of benefit to have had the opportunity of undertaking an interview techniques workshop under the tuition of Professor Simon Halliday at the University of New South Wales.  Participation in that workshop has paid significant dividends in that the course of the research interviews has been efficient, painless, comfortable, engaging and incisive in that much valuable information has been disclosed and the interviews themselves have been well received.

Ethics applications are sometimes perceived as unnecessarily bureaucratic and cumbersome, especially with low risk research where many of the ethics considerations appear to have little or no relevance to the empirical work. However, upon reflection, it is clear that they have an important role to play in reminding researchers of the need for personal organization, stringency and rigour in the manner that data is collected and the study carried out.  In the present study it was determined to make up a separate file in relation to each respondent so that appointments could be noted, email, telephone and other administrative contact could be recorded and the signed participant consent forms retained.  The file also serves as a convenient check list to ensure that all necessary action has been taken and the consent forms are signed. In this way, there is a complete record of the research which can be audited for intellectual rigour and authenticity should the need ever arise.  The system also allows easy de-identification and re-identification of data for inclusion in presentations and progress reports such as this.

Challenges

The study has also disclosed some challenges, a few of which are discussed below.

In the first place, it should be observed that, as noted above, the respondents are in no sense a homogenous group who occupy themselves in similar or even remotely related, litigious tasks throughout a routine week of legal activity. The draft list of questions to which so much thought and consideration was given in the preparation and which was approved by the Ethics Committee, totally failed to take account of the fact that some questions which address specific areas of the law such as equity cases or personal injury, simply have no application to people who have never practiced in that area of the law.  In consequence, it has been necessary to adjust the questioning “on the run” to take account of those anomalies and do so in a manner which is consistent with the Ethics Committee’s approval.  Fortunately, thanks to the foresight of the project’s supervisors, the Ethics application was framed broadly enough to accommodate this contingency.  The lesson to be learned though is a good one.  When seeking approval of a questionnaire to be used in personal interviews, it is a good idea to seek approval of questions “along the lines of the questions indicated in the draft interview” so that any minor departures from the script of the kind rendered necessary in this study can be accommodated without the need to return to the Ethics Committee for amendment of approval.

Secondly, the transcription of the audio recordings has been challenging. Each interview occupies approximately one hour.  The briefest interview occupied thirty one minutes and the lengthiest was one hour and four minutes. Every hour of interview time consumes approximately six hours of transcription time.  Consideration was given to seeking funding to outsource the transcription to professional transcription service providers but, for the following reasons, that decision has been deferred, at least for the moment.

This researcher lives under the disability of a significant hearing defect. Sometimes, it is difficult to capture every word of the interview through the medium of natural hearing, though experience has proven that recorded interviews can later be replayed at volume and any material missed collected by listening to the audio recording through headsets. Whilst this has the slight disadvantage of not being able to pursue further questioning if something important is not captured during the interview, that disadvantage is more than offset by the time saving in not having to interrupt the flow of conversation and protract the interview time by asking a respondent constantly to repeat answers given during an interview.  The task of physically transcribing the interviews, tedious though it is, allows a thorough examination of the data and identification of emerging trends that may be important to the study.

A further challenge in dealing with the transcript is one that would be familiar to all transcription typists and court reporters. It is that the spoken word is fundamentally different from the written word and that is a challenge which should be recognized and addressed by all researchers who collect data in the form of transcribed records of interview. The spoken word does not use punctuation or script or formatting and, very often, we do not speak in complete sentences.  Questions arise as to how literal the transcription should be.  For example, do we include embolalia that appears in almost all speech – or do we ignore it and try to create a clear and meaningful sentence from what may have been a hesitant and thoughtful reply which may have been reconsidered even as it was given?  An example might be: “Well, yes, I err, think that.., well, ah, let me put it this way…well let’s just go back a step…” and so on.  One respondent in the present study, anxious to ensure that he was supplying information which was of interest, kept interrupting himself mid-sentence to say: “Now if this is not answering your question, please tell me.”

A further complexity of the transition from the spoken word to the written word is the tendency of respondents who are asked to give examples of things to ply back and forth between first person and third person speech often without notice so that it becomes quite confusing to work out who actually said what to whom. An example might be: “Well he came in and said: ‘Can you act for me?’ and I said yes but he would have to give me proper instructions. You know that means completing a financial statement” and so on.

These may seem to be somewhat pedantic matters but, in the interest of preserving personal integrity, faithful reporting and intellectual rigour, they are matters which need to be addressed lest we inadvertently misrepresent the data which has been supplied to us.

In order to meet these challenges, a conservative approach has been adopted and a literal transcript of his/her interview has been provided for the approval of each respondent.

Conclusion

This is an exciting project because, although still in its early stages, there is some evidence to confirm the hypothesis that, even now in 2016, with all the accumulated wisdom and experience we have gained through research into mediation, there is a reluctance or inability on the part of the legal profession to engage with ADR on its own terms or otherwise than by reference to the established rule-based norms of the conventional justice institutions as viewed through the prism of adversarial glasses. Whether that is a trend which will continue as the research progresses remains to be seen.

 

John Woodward,

University of New South Wales

 

 

 

 

 

[1] See F Donohoe III Lawyers as Gatekeepers: Mediation and the ADR Processing of Environmental Disputes PhD Thesis, University of California, 1997

[2] L Coser The Functions of Social Conflict (New York, Free Press, 1956) at p.8

[3] J Rubin, D. Pruitt and S. Kim Social Conflict: Escalation, Stalemate and Settlement 2^nd ed. (New York, McGraw-Hill, 1994) at p.5

[4] K Avruch Culture and Conflict Resolution (Washington, US Institute of Peace Press, 1998) at p.24

[5] See, for example P Condliffe Conflict in the Compact City: Preferences and the Search for Justice PhD Thesis, Victoria University, 2011.

[6] J Macfarlane The New Lawyer: How Settlement is Transforming the Practice of Law (Vancouver UBC Press, 2008) p.96

[7] Ibid p.109

[8] P Condliffe Conflict Management: A Practical Guide (4^th edition, Sydney, Lexis-Nexus-Butterworths, 2012) p.174