This is a further (edited) excerpt from Chapter 5 of our new book: Laurence Boulle and Rachael Field, Australian Dispute Resolution Law and Practice (Lexis Nexis, 2017) in which we discuss the nature and dimensions of conflict and disputes – particularly from the perspective that conflict and disputes are the core business of lawyering. We look forward to your comments and responses. Rachael and Laurence

Many disciplines investigate, research and analyse the nature and dimensions of conflict and disputes, from anthropology to sociology, and from psychology to political science.^[1] The nature and dimensions of conflict are not, however, topics afforded significant attention within the traditions of law and legal practice. This is cause for surprise since a major part of law’s project involves dealing with conflict and disputes and their consequences, and there is significance in how legal events and interventions themselves impact on their scope, intensity and manageability. This Chapter suggests that conflict and disputes are the business of law and of lawyers, and their configuration should be as much the focus of the legal profession’s exercise of its expertise as bodily anatomy is to that of the medical profession.

The non-legal disciplines inform us that conflict and disputes are natural and everyday phenomena^[2] encountered in homes, communities, boardrooms, parliaments and war zones throughout the world. They are played out vicariously in the news media and in television and in theatre and computer games and are not absent from non-human animals’ behaviours as well.^[3] Whether between individuals, corporations or nation states conflicts and disputes all assume some degree of incompatibility among the parties involved, whether over objectives, resources, strategies, perceptions or other inconsistent preferences. The incompatibilities can lead to disagreement and disagreement can lead to some kind of struggle, where each side pursues its own preferences in ways not acceptable to the other. The struggle can be verbal, as in hostile publications or political polemics; tactical, such as the formation of alliances or engagement of lawyers; or activist, such as trade embargoes or armed hostilities.

Conflicts and disputes are seldom static in nature – they tend to be living organisms involving internal dynamics and fluctuating environmental pressures. While conflicts may commence as underlying feelings of uncertainty and unease over the prospective activities of others they can escalate into something more overt and significant. To take a topical example, there could be underlying tensions among farmers, exploration companies, government officials and politicians over properties targeted for coal-seam gas prospecting licenses.^[4] This situation of covert conflict could endure for years in a relatively static state, despite occasional skirmishes from one side or the other, until there is a precipitating event which brings it into the open. The underlying conflict could evolve where one or other party takes public actions which raise contentious issues – for example government provides a licence for gas exploration against the wishes of a resistant farmer. Here there is overt behaviour which creates expectations of loss for the farmer in relation to the economic viability, environmental bio-security or the very existence of the family farm for future generations. The situation would evolve into a dispute when the licensed exploration company attempts to access the property and is obstructed by a protesting community group. The dispute could escalate where the latter are prohibited from their resistance activities by court order. There are now manifest issues requiring dispute management, namely the lawfulness of the prospecting corporation’s access to the farm, alleged non-compliance with the terms and conditions under which prospecting can occur, and the legalities of the protesting groups’ behaviour.

While the definitive DNA of conflict is yet to be revealed there is increasing knowledge and understanding about the phenomenon.^[5] This knowledge is important for lawyering. Some commentators refer to three potential aspects to any conflict – the cognitive, the emotional and the behavioural.^[6]

The first, cognitive, involves the perceptions, beliefs and understandings of those in conflict. Here parties could have a range of subjective perceptions that their needs are not being met because of the incompatible and unreasonable activities of others – for example a parent waiting for their children to be returned after an access visit perceives the other parent to be inconsiderate and believes they children’s interests are not best served by having access. The second is the emotional dimension, which involves the subjective feelings of people in conflict situations, including those directed at others involved in the conflict – for example the waiting party is upset, frustrated or angry over continual delays in returning the children. Both the cognitive and emotional facets of conflict might not be known to others if they are suppressed and not articulated by the party experiencing them. This is not the case with the third dimension, the behavioural, which comprises the external and observable actions which parties in conflict take in expressing their feelings, articulating their views on the situation’s rights and wrongs and pursuing concrete actions in attempting to get their needs met – the parent in the above example remonstrates with the recalcitrant party, seeks legal advice or attempts to amend the contact arrangements.

The dimensions of conflicts and disputes need not coincide with one another. Thus, a small business owner may have negative perceptions (cognitive) about a dispute situation with a large supplier, but chooses to suppress their sense of injustice or to withdraw from the situation (behaviour) for emotional relief (emotion); alternatively they might negotiate a settlement and implement its terms (behaviour) but still regard themselves as having been unfairly treated (cognitive) or experience prolonged anger towards the supplier (emotion). Some DR processes, such as arbitration and litigation, attempt to modify parties’ behaviours by getting them to commit to specific outcomes (behaviour) without attempting to change their perceptions (cognitive) about the conflict situation or to ameliorate negative feelings regarding the other party and themselves (emotions), for example by moving from anger to an acceptance of new realities.^[7] Processes, such as facilitation and mediation, attempt in varying degrees to deal with all three dimensions of conflict.^[8]

The emotional and psychological dimensions of conflict are related to the grieving process which parties experience after a significant loss. Thus, where a person has suffered the loss of a limb, their job or their hopes for being able to purchase a house, they are likely to experience some or all of the stages or phases of grief.^[9] These include shock, denial, anger, bargaining and sadness, but they do not occur in a neat linear fashion. For a spouse in shock (‘I don’t know how this happened’) or denial (‘They’re just going through a phase, everything will be fine’) after the breakdown of a relationship it is not easy to negotiate or make appropriate decisions, for example in relation to the division of matrimonial property.^[10] The grief and loss process may have to be managed before the respective party can say with conviction, ‘I just want to get on with my life and dividing up the property will help with that’. Once a person has reached the ‘acceptance’ stage of the grieving process they are more able to create new meanings for their lives, and to participate authentically in dispute resolution processes.^[11]

Parties’ beliefs and the meanings they attach to past events affect all the dimensions of conflict and disputes. Where parties are acting out in contested situations their attitudes and behaviours are predicated on beliefs about what they deserve or can reasonably expect, based on life experiences, on what others have told them or on their professional advice. For example, changes in welfare regulations may lessen the benefits for senior citizen Ruby. However, Ruby may have a strong sense of entitlement to benefits, based on her many years of work, on serving with distinction in the military and on paying taxes throughout her life. These together create subjective beliefs as to what is right and wrong in her situation and brings her into conflict, and potential dispute, with welfare agencies and government. Beliefs are not easy to change. However, a conciliator or other intervener who acknowledges Ruby’s beliefs and understands their significance for her perceptions and behaviour may be able to assist her through the conflict process.

An understanding of the dimensions of disputes, of their potential to escalate and of the loss and grief conflicted parties might be experiencing, provides insights for lawyers into what particular DR process will respond most appropriately to their clients’ needs.^[12] Some processes are suited to dealing with substantive needs, such as payment of money or assertion of intellectual property rights, thereby forcing one or both parties to modify their behaviours. Some deal better with the psychological and emotional factors, referred to above, such as shock, anger and frustration over past behaviours and current recalcitrance. Yet others deal with cognitive issues relating to perceived unfairness or powerlessness by providing procedural steps which convey respect and dignity, productive avenues of communication and the maintenance of ongoing relationships. The law has traditionally been inclined to focus on the substantive and procedural needs of clients, whereas some of the processes in the contemporary DR matrix aim to engage as well with the psychological and emotional dimensions.

[1] The term itself derives from Latin, meaning ‘to strike together’.

[2] See John Paul Lederach, Preparing for Peace: Conflict Transformation Across Cultures (Syracuse University Press, 1995) 8-9.

[3] While this is a truism, studies of animals in conflict situations show how they elicit ‘mediation’ and ‘arbitration’ behaviours from other animals. See generally Frans de Waal, Our Inner Ape (Granta Books, London, 2005) and Frans de Waal (Stephen Macedo and Josiah Ober (eds)), Primates and Philosophers: How Morality Evolved (Princeton University Press, 2009).

[4] On managing these issues see Laurence Boulle, Tina Hunter, Michael Weir, Kate Curnow, ‘Negotiating Conduct and Compensation Agreements for Coal Seam Gas Operations:  Developing the Queensland Regulatory Framework’ 17 (2014) The Australasian Journal of Natural Resources Law and Policy 43.

[5] For leading Australian and international texts on conflict and its management see footnote 1 of Chapter 5 of Laurence Boulle and Rachael Field, Australian Dispute Resolution Law and Practice (Lexis Nexis, 2017).

[6] See Bernard Mayer, ‘How We Experience Conflict’ and ‘What Causes Conflict’ in The Dynamics of Conflict: A Guide to Engagement and Intervention (Jossey-Bass, 2nd ed, 2012) 3-4 and 8-10 respectively. See also Laurence Boulle, Mediation: Principles Process Practice (Lexis Nexis, 3rd ed, 2011) 108-9.

[7] See Robert I Simon and Daniel W Shuman (eds), Retrospective Assessment of Mental States in Litigation: Predicting the Past (American Psychiatric Publishing, 2008).

[8] See for example, Ray Friedman et al, ‘The Positive and Negative Effects of Anger on Dispute Resolution: Evidence from Electronically Mediated Disputes’ (2004) 89(2) Journal of Applied Psychology 369.

[9]  A classic text is Elizabeth Kubler-Ross and David Kessler, On Grief and Grieving: Finding the Meaning of Grief Through the Five Stages of Loss (Scribner, 2014).

[10] Or in relation to parenting matters:  Joan B Kelly, ‘Parents with Enduring Child Disputes: Multiple Pathways to Enduring Disputes’ (2003) 9(1) Journal of Family Studies 37.

[11] See Esther Davis, Frank Deane and Geoffrey Lyons, ‘Prediction of Individual Differences in Adjustment to Loss: Acceptance and Valued-Living as Critical Appraisal and Coping Strengths’ (2016) 40(4) Death Studies 211; and Froma Walsh, Strengthening Family Resilience (Guilford Publications, 2015).

[12] See for example, Penny Lakey, ‘An Exploration of Multiparty Dispute Resolution When the Impending Death of a Loved One Creates an Escalation in Family Conflict’ (2007) 10(3) ADR Bulletin 56

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By Spencer Csapo-Grege

This post is the second in a series of posts on this blog written by students studying Non-Adversarial Justice at the Faculty of Law at Monash University. Students were invited to write blog posts explaining various complex areas of law relating to dispute resolution to ordinary readers. The very best post on each topic is published here.

I INTRODUCTION

For effective dispute intervention, mediation may be a necessity. Issues may arise as intervention through mediation requires a particular skill set that is not taught to all mediators. Because mediation requires independence of knowledge it could thus benefit from existing as a unique profession.

The central issue is whether the lack of legal, or other specialised expertise in independent mediation outweighs the positive benefits of independents being solely trained in mediation skills. I propose that it would – mediation should not be a distinct profession, based on three peripheral issues.

The first is that of qualification, it is already evident that Mediators can be sufficiently qualified to demonstrate an appropriate standard in their mediation ability.

The second issue addresses the need for professionalism, over the potential loss of individual comfort.

And, the third is the issue of Content – independent mediators may not understand, and hence be able to implement, necessary content into their mediation, such as a mediator not being able to recommend legal options due to a lack of formal training in the law.

Mediation should remain a separate profession. Photo: creative commons source

II ISSUES OF QUALIFICATION

Dispute resolution practitioners currently rely on their status as professionals in other fields such as law, psychology or social work to demonstrate their expertise into the area of mediation. Due to this diversity there are mediation laws which both regulate the requisite standard of mediation, as well as mediator accreditation.

In the National Mediator Accreditation System mediators do not require a formal qualification to satisfy mediation standards. A requisite of experience in mediation, or good personal attributes can satisfy the qualification criteria – demonstrating the potential of being insufficient.

Hence it can be erroneously said that mediation would benefit from formal qualification as its independent identity as a profession will be established, rectifying this potential of insufficiency. However, mediation involves dealing with the individual’s specialised issue, and the accumulation of content relevant experiences aids in its resolution. Thus the identity of mediation is based on the content mediated upon, not on the process.

The current system is effective in recognising this through interconnecting mediation, as dispute resolution, into its relevant field, such as law.

If mediation was a separate profession, there may be two possible financial benefits. Firstly, having to pay someone who has been educated in another profession to mediate, such as law, can be more costly than if mediation was distinct, because the education requirements would likely be less. Secondly, because of this educational difference, Mediation is subject to possible monetary exploitation – lawyers’ fees can be standardised as expensive due to their legal expertise, and not because of their ability to mediate.

This is problematic because monetary gain should not be the driving force behind mediation. If a mediator only cares about making a profit, and not the parties’ situation, then they may stall time to earn a higher profit, even though it is not in the best interests of those involved. Thus a distinct profession of mediation, that is capable of attracting individuals desiring mediation for reasons other than financial gain remains beneficial.

Even though there is possible financial detriment and shortage of formal qualification, the established method of mediator qualification remains sufficient because it binds and aligns dispute intervention to its relevant field. However, the current system of qualification may not be adequate. This is because the National Mediation Accreditation System primarily focuses on facilitative mediation and fails to cover the full range of mediation practices.

However, this flaw also represent the adverse effect that separate mediation can bring – an inapplicability of appropriate mediation principles to specific subject matter and a possibility of exploitation due to mediator exclusivity. Thus, current mediation regulation should not be revolutionised so that mediation is an independent profession.

III ADDRESSING INDIVIDUAL WELL-BEING THROUGH PROFESSIONALISM

A Assistance of Therapeutic Mediation?

A contentious issue with the integration of mediation with other fields is the impact of the people involved on an individual level. If mediators were trained independently, there would be stronger emphasis on the individual and the relationship of the parties – thus therapeutic mediation could benefit. However, a professional able to help with the specific dispute at hand is likely to aid individual well-being because the parties will appreciate the mediator’s assistance on the basis of their professionalism – finding comfort in the mediator having relevant expertise to deal with the content matter of issue. For example, although a psychologist has better educated understanding of, and thus will take into account, the individuals emotional and mental well-being – as opposed to a lawyer. It is probable an individual will be more distressed in a psychologist trying to mediate for them in a matter of law, then a lawyer, because the psychologist is not trained in legal procedure.

B Advancement of Facilitative mediation?

Facilitative mediation is proven to be the most common form of mediation in Australia and is thus the recognized standard. If the integration of mediation advances facilitative mediation, then it indicates that mediation should not be a distinct profession. Integrating mediation provides for a more accurate basis of assessing an individual’s needs, which is important to facilitation, because it’s concerned with addressing both the personal and commercial needs of the parties. And, complete understanding of the individual’s options and abilities, in the case of law, are only prevalent because of the mediator’s legal background. Because mediators cannot usually give legal advice, parties are encouraged to have a lawyer attend with them as the need for legal understanding arises. Thus there is an issue in that a lawyer may want the most profitable outcome for themselves, and not necessarily the best situation for their client, and can, as an advisor to a party in mediation, cause disruption. This issue would be increased if mediators were separate and did not have legal training, because people would be further required to bring lawyers with them, for greater comprehension in choosing the best course of option between mediation and legal. Due to this dependent variable, the parties’ needs may not be prioritized and therefore a separate profession of mediation should not be established.

IV DIFFERENCE IN CONTENT

If mediation was a distinct profession would need to overcome the issue of how to achieve specialization in the subject matter of each mediation. We know that mediators intervene in the content of disputes, even in facilitative mediation. For effective intervention they must be familiar with the subject matter so that they can adequately provide information – based on all available knowledge. Content differentiation varies depending on the type of mediation, however, as outlined below, in general it is likely to indicate that mediation should not be a separate profession, but instead exist as a form of specialisation within its relevant profession. For example – as a lawyer, psychologist or social worker specialising in mediation, with requisite qualifications that demonstrate both their ability to work in the relevant field, as well as their ability to mediate.

The most appropriate option for parties to take may not be that of pure mediation but, for mediation to be a specialisation in a range of professions, such as law. Lawyers are trained in law and can rely on that experience to resolve the issue in a way that may be practical in the circumstances. This is because the legal avenue, may be more feasible then pure mediation. Thus, for a dispute to be resolved in a balanced manner the recommendation of legal options can also play a vital role in mediation – such as through settlement mediation to determine if the matter can be practically resolved in the legal sense, not just through negotiation. Hence, if mediation was independent, it would be difficult to intervene in disputes because the intervener, the mediator, may not fully comprehend the matters of discourse.

Mediation as a separate profession causes another issue in that if a mediator was mediating on a legal matter, but was not trained in the law, they would not be able to predict court decisions, and pressure parties into accepting on the basis of their predictions. Essentially evaluative mediation would be non-existent, or at best, less accurate. Thus, as evident, it is not feasible to blend all the content on which mediation can be applied, into one distinct profession.

V CONCLUSION

Mediation incorporates differing aspects and thus its independence can create broadness which undermines the field itself. The first two issues discussed, that of qualification and professionalism are contentious, and indicate possible support for independence – financial benefit towards the public and emotional health of the parties. Support for the third issue is highlighted as many mediation services focus on the resolution of relationship issues, and not just legal problems. However because relationship issues can be largely influenced by the law, a requisite of comprehension which remains vital to mediation. The third concern discussed demonstrates that this requisite of comprehension only exists with the knowledge gained through formal training in a relevant profession – supporting the current system. Mediation is hence mutually intertwined with its relevant subject matter, whilst benefit is also provided in its separation. As a result, the most suitable conclusion is that there should be organisations within the relevant professions, such as law, to manage mediation – it should be an area of specialised expertise, and not an area of independence.

Mr Spencer Csapo-Grege is a third year law student at Monash University with a primary interest in international law, banking and investments. He wishes to focus specifically on international investments, with a particular orientation towards banking. Furthermore, Spencer aims to be involved with international politics through the United Nations – he believes that state sovereignty has no place in a globalised world. For the practice of domestic law, Spencer’s interests are in alternative dispute resolution as he believes that most issues should be resolved outside of the court system. Currently Spencer runs a licensed investigations business and aims to finish his undergraduate studies at the end of 2017.

This is the second excerpt (taken from the final author version and with edited footnotes) from our new book: Laurence Boulle and Rachael Field, Australian Dispute Resolution Law and Practice (Lexis Nexis, 2017) in which we develop a philosophical framework for the articulation of DR values and goals. We look forward to your comments and responses. Rachael and Laurence

To provide a philosophical framework for a core set of values and goals for contemporary DR legal practice it is necessary to remove ourselves to a level of theoretical abstraction. To do this we turn (as the Productivity Commission did also) to established thinking on the purpose and place of the rule of law in a liberal democracy, and to the ‘core substantive values of democratic governance’ that connect with the operation of DR systems in our society, particularly for the prevention, management and resolution of legal disputes.^[1]

Going down this path requires a clearly defined concept of democracy, something which is far from straight forward. Many words of scholarship are devoted to the definition and analysis of democracy, the consideration of which is well beyond the scope of this work.  For our purposes, then, we have distilled this scholarship into a working general definition of democracy as:

… a system of governance in which rulers are held accountable for their actions in a public realm by citizens, acting independently through the competition and cooperation of their elected representatives.^[2]

We also adopt a comprehensive or ‘thick’ perspective on democracy, as more than simply ‘majority rules’ and including principles relating to both the substance, as well as the procedures, of democratic governance.^[3] A simple majoritarian model of democracy, emphasising a ‘thinner’ notion of democracy with a focus on property rights, is not particularly useful to a DR analysis or to understanding the place of DR within a democratic system based on the rule of law.^[4]

At the risk of over-simplifying a complex concept, democracy in a society such as Australia lays claim to characteristics such as a breadth of political inclusion, absences of arbitrary action, relative equality among citizens and the protection of liberty and autonomy within a context of collective responsibility and accountability.^[5] The purpose of democracy is to support the freedom, voice and participation of its citizenry which entails that some conflict and disputing is inevitable, or even welcome,^[6] in a society subscribing to democratic ideals (see further discussion on the nature of conflict in Chapter 5).^[7]

However, democracy is also the go-to societal structure for providing stability, order and peace.^[8] As Diamond has said, democracy makes peace possible because it recognises diverse identities whilst also providing legal protections for group and individual rights.^[9] The political institutions at the centre of democracies empower citizens by devolving decision-making power, whilst also encouraging and enabling bargaining and accommodation.^[10]

The orderly management of disputes is therefore a critical feature of democratic governance, a feature enabled by the rule of law. The rule of law in democracies such as Australia ensures a consistently peaceful and ordered society because it puts in place a network of accessible, fair and usually open and accountable institutions and procedures that allow for citizens to address sources of dispute and conflict. Some of these institutions and procedures are part of the formal justice system, others are practised through private ordering.

Justice Hayne has said that the two most important premises of the relationship between DR and the rule of law are: ‘first, that each party may choose whether to submit the dispute to external resolution rather than reach an agreement with the opposite party, and, secondly, that there is an established and accessible body to resolve the dispute by application of … known and predictable laws’.^[11] His Honour elaborates that ‘a court system established by the State must be and remain the centrepiece of dispute resolution in accordance with the rule of law’.^[12]

Justice Hayne, one of Australia’s leading judges and black-letter lawyers, expressed this view in 2002. We would argue, more than a decade later and looking forward, that the better view is that facilitative and advisory processes on the DR matrix have replaced litigation at the centre of the relationship between Australia’s rule of law and DR. It is no longer the courts alone that help define our society as one that is civilized and prevent routine disputes from escalating into violence and social chaos.^[13] It is more commonly the diverse range of additional, appropriate DR methods that perform this societal role.^[14] The connection between DR processes other than litigation and the rule of law is shown further below.

The critical role of DR in ensuring that democracy works means that the values of democracy should be congruent with, and in fact inform, the values of DR. While scholars debate the exact nature of democracy, they are in relative agreement about the core substantive values found within democratic systems of law and governance. These values are generally considered to include: ‘personal autonomy, participation, accountability, transparency, rationality, equality, due process, and the promotion of a strong civil society’.^[15] In Chapter 4 of Australian Dispute Resolution Law and Practice, we draw on these values of democracy to identify and explore three core values of DR within the Australian rule of law: justice, party autonomy and community.^[16]

[1] See Richard C Reuben, ‘Democracy and Dispute Resolution: The Problem of Arbitration’ (2004) 67 Law and Contemporary Problems 279, 282. See also, Richard C Reuben, ‘Democracy and Dispute Resolution: Systems Design and the New Workplace’ (2005) 10 Harvard Negotiation Law Review 11.

[2] Philippe C Schmitter and Terry Lynn Karl, ‘What Democracy Is … and Is Not’ in Larry Diamond and Marc F Plattner (eds), The Global Resurgence of Democracy (John Hopkins University Press, 2^nd ed, 1996) 49, 49-50.

[3] Thinner definitions of democracy emphasise procedure over substance with a focus on majoritarianism in government.  See Arend Lijphart, Patterns of Democracy – Government Forms and Performance in Thirty-Six Countries (Yale University Press, 1999).

[4] Arend Lijphart, Thinking about Democracy – Power Sharing and Majority Rule in Theory and Practice (NY: Routledge, 2008); Laurence Boulle, South Africa and the Consociational Option (Juta and Co, 1985).

[5] See for example, Charles Tilley, Democracy (Cambridge University Press, 2007).

[6] Mary Parker Follett, ‘Constructive Conflict’ in Pauline Graham (ed), Mary Parker Follett: Prophet of Management: A Celebration of Writings from the 1920s (Harvard Business School Press, 1996) 67.

[7] Dean Pruitt and Sung Hee Kim, Social Conflict: Escalation, Stalemate, and Settlement (MacGraw-Hill Higher Education, 3^rd ed, 2004).

[8] See, for example, Donald Horowitz, ‘Democracy in Divided Societies’ (1993) 4(4) Journal of Democracy 18.

[9] Larry Diamond, The Spirit of Democracy: The Struggle to Build Free Societies Throughout the World (Times Books, 2008).

[10] Ibid.

[11] Justice Hayne, ‘Dispute Resolution and the Rule of Law’, Sino-Australian Seminar, Beijing, 20-22 November 2002 available at: http://www.hcourt.gov.au/assets/publications/speeches/current-justices/haynej/haynej_DisputeResolutionBeijing.htm.

[12] Ibid.

[13] Reuben, above n 1, 285.

[14] This was acknowledged decades ago: Robert H Mnookin and Lewis Kornhauser, ‘Bargaining in the Shadow of the Law: The Case of Divorce’ (1979) 88 Yale Law Journal 950.

[15] Reuben, above n 15, 282.

[16] We use the word community to denote civil society. In his Politics Aristotle used the phrase civil society to refer to a ‘community’ in the sense of a polis made up of free and equal citizens living under the rule of law.

Stefan Karpiniec, Albert’s Tomb, Organ Pipes Mt Wellington Tasmania Australia 1974

Creative Commons Licence 

https://commons.wikimedia.org/wiki/File:Organ_Pipes,_Mt_Wellington_-_One_Day_on_the_Organ_Pipes_-_2773115903.jpg 

Finally, the 2016 Australian Dispute Resolution Research Network Roundtable has arrived in climatically changeable Hobart. We have an amazing selection of works in progress to be rigorously discussed in a mutually supportive environment. The Roundtable is an opportunity for risk taking and community building. Presenters (some speaking on behalf of co-authors) and their working titles are (in the order to be discussed):

• Olivia Rundle, A method to unlock hidden research expertise: making “failure” visible
• Lola Akin Ojelabi, Exploring ”voice” in mediation
• Becky Batagol, Beyond family law: Mediating family violence safely
• John Woodward, ADR in the Federal Circuit Court – A case of falling between two stools?
• Dominique Allen, Using ADR to resolve Workplace Discrimination Claims: Pitfall and Benefits
• Alpana Roy, Online dispute resolution in the domain name space
• Emma-May Litchfield, The importance of understanding the stories of mediation trainers
• Jon Crowe, Two models of mediation ethics
• Sue Douglas, Socio-legal constructions of impartiality in mediation
• Lisa Toohey, Information use in negotiating post-separation parenting arrangements: A pilot study
• Samantha Kontra, Legal negotiation: What is in a definition
• Geneveive Grant, Preparing the future profession: online dispute resolution in legal education
• Bobette Wolski, Ethical duties owed by mediators: Lessons from Australia’s NMAS Practice Standards
• Bruno Zeller, The utility of Article 34 and 36 of the Model Law. The issue of public policy?

Our commentators include the above presenters as well as Kate Curnow, Rosemary Howell, Pauline Roach and Samantha Hardy.

Watch for live tweeting during the Roundtable @adrresearch #ADRRN16

Discussion sessions will be held to talk about this blog and the way that we organise the network, membership, and positions. If you are not participating in the Roundtable but would like to offer your point of view, please contact Becky Batagol about the blog and Jon Crowe about the Network’s membership and structure.

Watch this space for news of what happens to the works in progress after the Roundtable. We hope that all authors will make a post during 2017 to report what happened next.

This is an excerpt (taken from the final author version and with edited footnotes) from our new book: Laurence Boulle and Rachael Field, Australian Dispute Resolution Law and Practice (Lexis Nexis, 2017) in which we support the move towards making the language of dispute resolution more contemporary by referring to DR rather than ADR. We look forward to your comments and responses as we post a number of excerpts over the month of December. Rachael and Laurence

Defining dispute resolution is not an easy task.^[1] There are many different processes that fall under the ambit of ‘DR’, and to complicate matters there is much internal diversity within processes which have the same label. When DR processes such as mediation and conciliation started to be widely used, they were collectively referred to as ‘alternative dispute resolution’ (ADR).  The acronym ADR originally denoted processes developed, intentionally or organically, as alternatives to those provided by courts and tribunals in formal justice systems.[2] Initially, there was angst and argument about what should be included in, or excluded from, the term.^[3] While ADR was originally associated with mediation, it came to include other processes such as neutral evaluation and case appraisal. This resulted in NADRAC (the National Alternative Dispute Resolution Advisory Council) defining ADR as,

… an umbrella term for processes, other than judicial determination, in which an impartial person assists those in a dispute to resolve the issues between them. ADR is commonly used as an abbreviation for alternative dispute resolution, but can also be used to mean assisted or appropriate dispute resolution. Some also use the term ADR to include approaches that enable parties to prevent or manage their own disputes without outside assistance.[4]

The NADRAC approach emphasised that ADR was understood in contradistinction to litigation. This reinforced rhetorical dichotomies in the literature around formal versus informal processes; speedy versus slow processes; processes that invite direct party participation versus those that exclude party participation; processes controlled by the parties versus those controlled by third parties; expensive versus inexpensive processes; coercive versus consensual processes; binding versus non-binding processes. These sorts of binary distinctions have always been simplistic and confining, and have long (and rightly) been acknowledged as such. These distinctions were based on false assumptions about levels of consistency and unity within ADR processes,^[5] which obscured ‘the many and important distinctions between different ADR processes, lumping them together as if ADR was one homogenous institution set apart from the courts’.[6] As a result, ADR processes were depicted as ‘the other’ (to litigation), bestowing a primacy on litigation that was historically and socially misleading in terms of the extent of litigation’s contribution to overall dispute resolution systems.[7] There is, however, another sense in which litigation enjoys a normative ‘primacy’ in legal dispute resolution: it has operated, and continues to some extent to operate, as an ultimate point of reference for all other dispute resolution processes and it has historically cast a shadow over their operation.

In the early 1990’s Julian Riekert, one of Australia’s founding writers in the area, identified three descriptors of ADR: first, ADR as including all forms of dispute resolution other than litigation; second, ADR as including dispute resolution processes that leave the form and content of any settlement to the parties; third, ADR as involving non-litigious processes with the intervention of an outside party.^[8] Riekert’s first definition continued the trend of defining ADR by reference to its alternative status to litigation.^[9] ADR was thus positioned for many years as the alternative option, and almost in opposition, to litigation. As a result, ADR processes and practices were viewed by some, particularly in the practising legal profession, with suspicion and distrust.[10] To redress these perceptions there were suggestions that ADR should be understood as signifying ‘additional’,^[11] ‘assisted’,^[12] ‘appropriate’,^[13] ‘administrative’^[14] or ‘amicable’ dispute resolution.^[15]

It is fair to say, then, that the use of the word ‘alternative’ as a descriptor for DR has long been inaccurate.[16] The processes understood to fall within its ambit are no longer  ‘alternative’ or ‘marginal’ because they are in fact often the primary, dominant or mainstream systems for resolving and managing conflicts and disputes, and are often sought out by the parties or mandated by DR clauses or by legislation.[17] Indeed, litigation might now be argued to be the true ‘alternative’ to the mainstream treatments of disputes, notwithstanding its normative influence in law and dispute resolution referred to above. Nevertheless, the term ADR still has currency and the durability of the acronym has meant that proposals for the adoption of terms such as those listed above, or other examples such as ‘innovative’ dispute resolution, or ‘non-adversarial justice’, have not gained the traction that might be expected or that they might deserve.^[18]

While the term ADR remains widely used and recognised, and while it is still the case that formal legal and justice systems continue to some extent to privilege litigation, there is now less anxiety over definitional questions, and over what is and what is not included in generic terms in the field. It is propitious that binary distinctions between ADR and litigation, and their respective attributes, are generally no longer regarded as appropriate. Litigation too has lost much of its assumed consistency and uniformity and currently has its own variations, adaptations and mutations, as we discuss in Chapter 10. Moreover the ‘institutionalisation’ of ADR has brought it within the purview of courts, tribunals, agencies and other aspects of formal justice processes where it is one component of overall systems for and approaches to assisting people in dispute to resolve and manage their matters. In other words, with ADR now established within courts, government agencies and private enterprises it must be viewed as part of the overall schema of dispute handling in the legal system and in society more broadly. Today we have a great diversity of processes available both within and outside the courts. There is also a realisation that whilst most disputes are not dealt with in litigation, non-litigated disputes are managed, at least to some extent, in the ‘shadow of the law’, that is they are informed by what would or could happen if the matter were litigated.^[19]

Our approach in this book is to avoid the term ‘alternative’ in identifying dispute resolution processes other than litigation, and simply to refer to ‘dispute resolution’ (DR) as encompassing all processes, including litigation.[20] ADR remains an historical term of art, recognised and understood by many within the legal and justice communities, but it is no longer a relevant or accurate descriptor for the future of DR practice, especially in legal contexts. It is used in this text only to reflect its use in cases or legislation or where its historical legacy makes it appropriate. When needing to distinguish non-litigious processes we refer to non-litigation DR (NLDR).

^[1] Eric Green was arguably the first to use the term ‘alternative dispute resolution’. See Eric Green, ‘Settling Large Case Litigation: An Alternative Approach’ (1978) 11 Loyola of Los Angeles Law Review 493. The Australian Productivity Commission has also recommended that common definitions about legal services be adopted in order to ‘maximise the usefulness of legal services data sets, (and) reform in the collection and reporting of data’: see recommendation 25.2 in Productivity Commission, Access to Justice Arrangements, Report No. 72 (Australian Government, 2014). See also Australian Law Reform Commission, Review of the Adversarial System of Litigation ADR — its Role in Federal Dispute Resolution, Issues Paper 25 (ALRC, 1998) section 2; Law Reform Commission, Ireland, Report on Alternative Dispute Resolution: Mediation and Conciliation, LRC 98-2010 (LRC Ireland, 2010), http://www.lawreform.ie, citing George Applebey, ‘What is Alternative Dispute Resolution?’ (1991-1992) 15 Holdsworth Law Review 20.

[2] See Frank EA Sander, Varieties of Dispute Processing, Address given at the Pound Conference on Causes of Dissatisfaction with Justice (1976), reprinted in A Leo Levin and Russel R Wheeler (eds), The Pound Conference: Perspectives on Justice in the Future: Proceedings of the National Conference on the Causes or Popular Dissatisfaction with the Administration of Justice (West Publishing Co, 1979).

^[3]  Most notable were debates about whether arbitration could properly be included within the suite of ADR processes.

[4] NADRAC, Dispute Resolution Terms: The Use of Terms in (Alternative) Dispute Resolution, (Australian Government, 2003), 4. See also NADRAC, Your Guide to Dispute Resolution (Australian Government, 2012), 5.

^[5] Brunet, for example, noted that ‘ADR is not a unitary concept’: Edward Brunet, ‘Questioning the Quality of Alternative Dispute Resolution’ (1987) 62 Tulane Law Review 1, 10.

[6] Robert A Baruch Bush, ‘Defining Quality in Dispute Resolution: Taxonomies and Anti-Taxonomies of Quality Arguments’ (1989) 66 Denver University Law Review 335, 343.

[7] For example, Galanter has noted ‘the negotiated settlement of civil cases is not a marginal phenomenon; it is not an innovation; it is not some unusual alternative to litigation’: Marc Galanter, ‘A Settlement Judge Not a Trial Judge: Judicial Mediation in the US’ (1985) 12 Journal of Law and Society 1.

^[8] Julian Riekert, ‘Alternative Dispute Resolution in Australian Commercial Disputes — Quo Vadis?’ (1990) 1 Australian Dispute Resolution Journal 31.

^[9] This, however, did not include socially disapproved methods of dispute resolution such as coercion. Another critique of the word ‘alternative’ is that it implies deviance from a norm, as in ‘alternative life style’; in this sense, too, it was argued that labelling the new developments as ‘alternative’ processes was unfortunate. However, for others the concept ‘alternative’ carried the positive implication of difference from convention. In common parlance ‘alternative’ has a wide range of connotations, from approving notions of something different to the staid and conventional, to derogatory senses of deviation from the accepted and normative.

[10] Owen M Fiss, ‘Against Settlement’ (1984) 93 Yale Law Journal 1073 commenting at 1075: ‘I do not believe that settlement as a generic practice is preferable to judgment or should be institutionalized on a wholesale and indiscriminate basis. It should be treated instead as a highly problematic technique for streamlining dockets.’

^[11] Sir Laurence Street, ‘The Language of Alternative Dispute Resolution’ (1992) 66 Australian Law Journal 194. Street’s preference for the term ‘additional’ did not imply rejection of emphasis on litigation, which he considered a ‘fundamental element’ of western democracy. Rather, he viewed ADR as ‘supportive’ of litigation. See also David Spencer, Principles of Dispute Resolution (Lawbook Co, 2011), 3.

^[12] See, for example, Paul Lynch, ‘The Implementation of Assisted Dispute Resolution in Taxation of Costs in Queensland — Amendments to Order 91 of The Rules of the Supreme Court of Queensland’ (1995) Queensland Law Society Journal 53.

^[13] The term ‘appropriate dispute resolution’ is still used in Victorian legislation, keeping the acronym alive – see, for example, the Civil Procedure Act 2010 (Vic), s 77. See also Department of Justice, Victoria, New Directions for the Victorian Justice System 2004–2014: Attorney General’s Justice Statement (Victorian Government, 2004), 33 where it is said that ADR is increasingly referred to as ‘appropriate dispute resolution’, ‘in recognition of the fact that such approaches are often not just an alternative to litigation, but may be the most appropriate way to resolve a dispute’, citing Chapter 4 of the Victorian Law Reform Commission, Civil Justice Review: Report (Victorian Government, 2008), 212.

^[14] This expression is more limited in that it refers to steps taken during the performance of a construction project by those responsible for delivery of the project rather than by outside third parties. See, for example, Douglas Jones, ‘A Critical Analysis of the Means Commonly Adopted to Avoid Disputes in the Construction Industry’ (1998) 14 Building and Construction Law Journal 31, 33.

^[15] See, for example, David Hollands, ‘FIDIC’s Provision for Amicable Settlement of Disputes’ (1989) 6 (1) International Construction Law Review 33. See also the International Chamber of Commerce, Rules of Arbitration, in force as from 1 January 2012 which refer in Appendix IV on Case Management Techniques to ‘amicable’ dispute resolution methods, http://www.iccwbo.org/products-and-services/arbitration-and-adr/arbitration/icc-rules-of-arbitration/.

[16] In some contexts ‘ADR’ is part of a broader concept of ‘resolution processes’ for example the Civil and Administrative Tribunal Act (NSW) 2013, s 37 is headed, ‘Tribunal to promote use of resolution processes’ and permits the Tribunal  to use (or require parties to proceedings to use) any one or more ‘resolution process’. It defines ‘resolution process’ as any process, including … alternative dispute resolution, in which parties are assisted to resolve or narrow the issues between them.

[17] Anne Bihancov, ‘What is an Example of a Good Dispute Resolution Clause and Why?’ (2014) Evaluation of ADR Paper 3 available from http://www.civiljustice.info/adreval/3.

^[18] In 1994 McLaren and Sanderson proposed the use of the term ‘innovative dispute resolution’: see Richard McLaren and John Sanderson, Innovative Dispute Resolution: The Alternative (Carswell Thomson Professional Publishing, 1994). Another formulation is ‘less-drastic’ forms of dispute resolution: see William Fox, International Commercial Agreements (Kluwer Law International, 3rd ed, 1998), 213. See also, Michael King, Arie Freiberg, Becky Batagol and Ross Hyams, Non-Adversarial Justice (The Federation Press, 2^nd ed, 2014).

^[19] Robert Mnookin and Lewis Kornhauser, ‘Bargaining in the Shadow of the Law: The Case of Divorce’ (1979) 88 Yale Law Journal 950. But see Carrie Menkel-Meadow, ‘Lawyer Negotiations: Theories and Realities — What We Learn from Mediation’ (1993) 56 Modern Law Review 361 at 371, querying whether Mnookin and Kornhauser are correct in their assessment of how the law influences out of court settlements.

[20] Note the title of NADRAC’s definitions publication changed from Alternative Dispute Resolution Definitions in 1997 to Dispute Resolution Terms: The Use of Terms in (Alternative) Dispute Resolution in 2003. See also Policy Developments, ‘Towards Consistency in ADR Terms’ (1998) 1(1) ADR Bulletin 7.