Rachel Field’s recent post DR Praxis has had me reflecting on what has influenced how I approach negotiations and other DR processes as a lawyer.

The knowledge I have gained as a researcher significantly informs my approach to numerous aspects of my role, including DR processes.

But that knowledge has not just come from DR theory and my discussions with other DR practitioners and researchers.  It has also been significantly informed by other fields and disciplines.

The work by sociologists and socio-legal scholars on legal consciousness* has been a particular influence.  It seeks to explain the variable power of formal law in everyday life and how “legality” in everyday life is not necessarily determined by formal law. It can help us understand the role of formal law (if any) in how individuals interpret and respond to issues and problems, as well as the factors that may contribute to an individual turning to or away from formal law.

When it comes to DR processes, an understanding of legal consciousness can help us understand what participants require to effectively participate in the process and potentially how they respond in it.

Are there any theories or practices from other fields or disciplines that you intend to explore in your research or that will influence your practice in 2017?

* See, for example, Ewick P and Silbey S, “The Common Place of Law: Stories from Everyday Life” (1998, The University of Chicago Press); Silbey S, “After Legal Consciousness” (2005) Annu. Rev. Law Soc. Sci 323; Abrego LT, ‘Legal Consciousness of Undocumented Latinos: Fear and Stigmas as Barriers to Claims-Making for first- and 1.5-Generation Immigrants’ (2011) 45(2) Law & Society Review 337; and Halliday S, Kitzinger C and Kitzinger “Law in everyday life and death: a socio-legal study of chronic disorders of consciousness” (2015) 35(1) Legal Studies 55.

DR Praxis[1]

The new work Australian Dispute Resolution Law and Practice (LexisNexis, 2017) articulates how there is a deep diversity in Australian DR practice which is grounded in a rich history (see Chapter 3). The early enthusiasm for ‘ADR’ was at times unbounded and uncritical, but the practice of DR in Australia is now well established and its roots are strong because they have been informed by developing critiques of DR processes across the matrix and by assessments of the potential of DR, including empirical studies and evaluations.

Nevertheless, there has, at times, been a certain level of disconnect between DR theory and DR practice. In order for DR to fulfil a new central role in legal professional practice in the future, a purposeful and rigorous approach is necessary to ensure that DR theory informs its practice and that practice developments inform DR theory. This is the DR praxis project; a project that is deserving of far more rigorous attention in the DR community. In the book, we flag the importance of the issue, highlight some key elements of DR praxis, and suggest some ways in which the praxis of DR can be sustained and supported into the future. There will always be a need to continue empirically researching and evaluating and theorising about DR systems. It is also important to draw from the existing body of theoretical, scholarly DR knowledge to inform the praxis project.

Praxis and DR advocacy[2]: Australian Dispute Resolution Law and Practice is about contemporary lawyering and legal practice in Australia, and how traditional approaches to the delivery of legal services and to ways of being a lawyer need to be reconceptualised. Lawyers must now be more than one dimensional adversarial fighters for rights and entitlements. For a sustainable future for the legal profession, lawyers must be multi-dimensional, multi-skilled, adaptable and agile practitioners in the context of the processes across the DR matrix.

How lawyers advocate in DR contexts, and what a legal DR advocate looks like (or should look like) is arguably one of the most important areas where a cultural shift is necessary for DR and legal praxis to move forward. It is critical that this shift is informed by the values and goals of DR and its theory (see Chapter 4). Both adversarial and non-adversarial advocacy knowledge, skills and attitudes are necessary for the provision of legal services to fulfil the DR values of justice, party autonomy and community. In Macfarlane’s words, lawyers must be able to ‘wear two hats’.[3]

Challenge: Some legal practitioners are resistant to accepting non-adversarial forms of advocacy as true advocacy – because legal advocacy has for so long been associated with adversarial approaches and court action. How can we promote non-adversarial forms of advocacy as having efficacy given the historical legal approach to advocacy?

[1] See for example, Richard J Bernstein, Beyond Objectivism and Relativism: Science, Hermeneutics and Praxis (University of Pennsylvania Press, 2011); Eric K Yamamoto, ‘Critical Race Praxis: Race Theory and Political Lawyering Practice in Post-Civil Rights America’ (1997) 95 Michigan Law Review 821.

[2] On this issue see for example, Julie Macfarlane, The New Lawyer (UBC Press, 2008). This section of the Chapter particularly draws from Rachael Field, James Duffy and Anna Huggins, Lawyering and Positive Professional Identities (LexisNexis Butterworths, 2014), ch 13. Other important contributions to the literature on legal advocacy in DR contexts include: Donna Cooper and Mieke Brandon, ‘Non-Adversarial Advocates and Gatekeepers: Lawyers, FDR Practitioners, and Cooperative Post-Separation Parenting’ (2008) 19(2) Australasian Dispute Resolution Journal 104; Donna Cooper, ‘Assisting Future Lawyers to Conceptualise their Dispute Resolution Advocacy Role’ (2013) 24(4) Australasian Dispute Resolution Journal 242; Donna Cooper, ‘The ‘New Advocacy’ and the Emergence of Lawyer Representatives in ADR’ (2013) 24 Australasian Dispute Resolution Journal 178;Donna Cooper, ‘Representing Clients from Courtroom to Mediation Settings: Switching Hats Between Adversarial Advocacy and Dispute Resolution Advocacy’ (2014) 25(3) Australasian Journal of Dispute Resolution 150; Donna Cooper, ‘Lawyers Behaving Badly in Mediations: Lessons for Legal Educators’ (2014) 25(4) Australasian Dispute Resolution Journal 204. See also, Olivia Rundle, ‘Barking Dogs: Lawyer Attitudes Towards Direct Disputant Participation in Court-Connected Mediation of General Civil Cases’ (2008) 8(1) QUT Law and Justice Journal 77; Olivia Rundle, ‘Lawyers’ Perspectives on ‘What is Court-Connected Mediation for?’ (2013) 20(1) International Journal of the Legal Profession 33; Olivia Rundle, ‘Lawyers’ Participation in Mediation and Professional Ethical Disposition’ (2015) 18(1) Legal Ethics 46; Olivia Rundle, ‘Lawyers’ Preparation for Court-Connected Mediation: The Supreme Court of Tasmania’ (2013) 32 University of Tasmania Law Review 20; Bobette Wolski, ‘On Mediation, Legal Representatives and Advocates’ (2015) 38 UNSW Law Journal 5; Paula Baron, Lillian Corbin and Judy Gutman, ‘Throwing Babies out with the Bathwater – Adversarialism ADR and the Way Forward’ (2014) 40 Monash University Law Review 283; Mary Anne Noone and Lola Akin Ojelabi, ‘Ethical Challenges for Mediators around the Globe: An Australian Perspective’ (2014) 45 Washington University Journal of Law and Policy145.

[3] Julie Macfarlane, above n 2, 98, 117.

A number of conferences and workshops with a dispute resolution focus or dispute resolution stream will be held in 2017.

Depending where you are (or whether you can travel), your interests (check the websites for program details, the streams and themes) and when they are being held, you may like to attend and/or look to present at:

• The American Bar Association Dispute Resolution 19th Annual Spring Conference
  19-22 April 2017
  Hyatt Regency, San Francisco, USA
  Website:  ABA 19th Annual Spring Conference
• International Meeting on Law and Society
  20-23 June 2017
  Sheraton Maria Isabel Hotel and Towers, Mexico City, Mexico
  Website: LSA 2017
• Socio-Legal Studies Association Annual Conference
  5-7 April 2017
  Newcastle University, Newcastle upon Tyne
  Website: SLSA 2017
  NOTE: Call for papers closes on 16 January 2017
• The ADR Research Network Workshop
  6-8 December 2017
  The University of the Sunshine Coast, Sunshine Coast, Australia
  See our earlier post for some initial details Beyond the Roundtable: Hobart 2016.  More details and call for papers will be posted later on this blog later in the year.

Are there any other 2017 conferences or workshops you are aware of that DR academics or practitioners may find interesting?

To all our followers and supporters of the ADR Research Network Blog.

Happy New Year and our best wishes for 2017!

It’s fair to say that 2016 was our most successful year yet. The Blog achieved its highest number of views since it was established in 2013 with more than 9000 views and almost 6000 visitors. Compare this with just over 800 views and just over 400 visitors for 2013. The Network members posted 64 posts across the year on diverse and interesting DR matters. These posts reached readers on almost every continent of the world.

In 2017 we aim to continue our contribution to scholarly critical thinking about DR and its place in contemporary global societies.  We look forward to growing the Network, and increasing the reach of our collective scholarship even further.

Thank you for following us in 2016 – we hope you will join us for another great year in 2017.

With our warmest wishes

The ADR Research Network Members