Restorative Justice in Mediation: A study of Police Complaint Systems: by Mary Riley PhD Candidate USC

Posted on 31/05/2018 by Dr Susan (Sue) Douglas

Alternative dispute resolution (ADR) is the way of the future given the cost, delays and personal toll that litigation through the courts can take on individuals. Civil law disputants have and continue to benefit from ADR by resolving their conflict via facilitated dialogue. Conversely, when disputants take the litigation road their often subjective issues are objectively dealt with and the outcome does little to repair or enhance the parties’ relationship. Why is this important? Well, humans are social creatures. We survive and thrive because of our relationships with others. If a civil dispute involves individuals who know each other, either personally or through business dealings, then establishing understanding and peacemaking is vital to their future interactions. So, the question is: can ADR take the resolution of disputes a step further – to heal the parties involved? Restorative justice (RJ) offers a way to do that.

The RJ principles of encounter, respect, open dialogue and agreement, through independent facilitation, have been applied in criminal justice mediation and conferencing for some time. RJ addresses the needs of those involved, in a way that is meaningful to them. It gives individuals a ‘voice’, so the harms caused by wrongdoing, which can be debilitating and life altering, can be expressed. The transformation that can occur in RJ mediation often results in changed attitudes and material and symbolic reparation.

I am about to embark on a study of the mechanisms for dealing with civilian complaints against police in Australia and elsewhere. I want to find out whether there is a place for RJ in the resolution of this type of conflict which is civil in nature but sits in a criminal justice context. Given that the police interact with the community in the course of their law enforcement duties it is not surprising that disputes occur and that these can result in large numbers of complaints. But the way these complaints are handled (i.e. against police but managed by police) may not lead to the restoration of what is a very important relationship – the police and in the community. An initial scoping exercise has revealed that in most parts of the world, complaints against police are dealt with via an internal process. However, there are a growing number of international examples of RJ mediation being used to resolve these disputes. The expected outcome of my research is a best practice model for the resolution of civilian complaints against the police, which could be implemented in Australia and elsewhere, including guidelines for successful implementation.

From theory to collaborative practice

Posted on 12/05/2018 by Sue Armstrong PhD

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I was a legal academic for twenty years: teaching, researching and writing about family law and family mediation. I have always sought to integrate theory with practice, and to inform my teaching and research with professional experience and current innovation. So, in addition to being a lawyer, I have trained and practised as a mediator, a family dispute resolution practitioner, a conflict coach and an interdisciplinary collaborative practice coach.

Interdisciplinary collaborative practice training

I thought I understood the collaborative framework and philosophy, but interdisciplinary collaborative practice training helped me better appreciate the rationale, the nuances of the process, the significance of teamwork and presence, and the value-add and roles of legal and non-legal professionals in this approach to dispute resolution. It sparked a strong interest to enrich my professional practice to include this burgeoning and important speciality. It made me keen to develop the artistry required of an effective collaborative practitioner.

At the core of collaborative practice is commitment to enhance party self-determination through structured and staged multi-professional support and advice. To this foundational mediation premise, collaborative practice applies current brain science to understand how separation and divorce are experienced as trauma. This science affirms that in empathising with people who are in acute stress response, professionals walk alongside them, reduce the energy taken up by their limbic system, support them to mirror empathic behaviour and create space for the neocortex to work more effectively.

This is critical because it assists people to manage their anxiety, creates calm, enhances self-awareness and promotes the capacity for active listening. It ultimately supports considered reflection and greater capacity for understanding themself, hearing their ex partner and making informed choices.

Coaching in the five way process

One of the more recent collaborative developments is the five-way collaborative process in which in a coach is an independent and impartial facilitator and steward of the collaborative process. A coach may assess the dispute and parties for suitability, and helps the lawyers and parties to make efficient use of the process.

Coaches often manage the overall process, frame the agenda and minute meetings, as well as assist parties to prepare for the meetings and to communicate effectively. They may meet jointly or separately with each party between five-way meetings to clarify party goals, assist parties to develop strategies to regulate their emotional state, facilitate feedback from child consultants, foster parental alliance, and help the family to transition constructively through the separation.

Coaches may be mental health professionals, but in Australia they are also frequently accredited Family Dispute Resolution Practitioners, bringing mediation expertise and authority to issue family court certificates should agreement not be reached. If appropriately trained, coaches may also bring the power of empathy to assist parties to self-regulate and to suport their capacity for empathic listening.

Coaches don’t need to be mental health professionals to do this, but do need to be aware of their professional boundaries, and to refer parties to seek psychological support or counselling if needed. The value of coaches in collaborative practice is their impartiality and their capacity to support interest-based negotiation, creatively problem solve, manage the meeting and between-meeting processes and keep the collaborative process on track.

Interdisciplinarity

Interdisciplinarity is one of the key features and advantages of contemporary collaborative practice. The support provided to parties by a multi-professional team can be invaluable and ensure informed decisions are made which have a whole-of-life and whole-of-family perspective.

A collaboratively trained financial neutral or forensic accountant can not only provide advice and options to distribute assets to meet immediate needs and just outcomes, but can do this within a longer-term perspective to address complex structuring issues, save tax and super and optimise parties’ future financial viability. Children’s specialists can also assist parents to hear their child’s experience of the separation and clarify what is in the child’s best interests.

Opportunities for lawyers

This interdisciplinarity, and especially the coach role, has the potential to decentre lawyers. But I think it actually frees lawyers to employ their expertise and advocacy to help parties achieve holistic outcomes. Whilst collaborative practice is likely to be attractive to lawyers already committed to non-adversarial and client-centred lawyering, it requires that lawyers are collaboratively trained so that they fully appreciate what teamwork requires, and what commitment to empower people to resolve their disputes jointly and collaboratively means in practice.

Because of its flexibility, collaborative practice also provides lawyers with further opportunities to reframe the process in ways consistent with protecting their client’s legal rights as well as problem solving about their needs and interests. Thus collaborative law has the potential for lawyers to contribute to reshaping the paradigms of legal practice and appropriate dispute resolution.

For many family lawyers this is their preferred form of practice. Family law clients report the benefits of collaborative practice in easing the separation transition and supporting post separation family life. One commented ‘my children are happy that their parents went through a non-adversarial process and they had a chance to voice their opinions to the Child Consultant and Coach’. Another reported ‘my husband and I decided we would try the process to see if we could get through our divorce amicably. Overall this was extremely successful and I would definitely suggest that anyone going through a divorce consider the collaborative route – it is quicker, it is cheaper and it encourages the couple to remain civil despite the tense emotions that inevitably come into play during a divorce.’

Collaborative practice has enormous potential to provide multi-professional support to transition people through separation and help them make informed, child-centred and life affirming choices. Further information is available through state-wide collaborative professional networks and collaborative practice training organisations.

Also published in Collaborative Professionals (NSW) Inc Newsletter, 20 April 2018 and on Armstrongmediation.com.au blog on 11 May 2018.

An ADR Research Network Roundtable Success Story

Posted on 11/05/2018 by Dr Susan (Sue) Douglas

An invitation to submit a paper for the 7th ADRRN Roundtable on the Sunshine Coast in December this year was posted on our blog in April. The function and aims of Roundtable are described in the invitation as:

The Australasian Dispute Resolution Research Network brings together leading dispute resolution scholars and provides a collaborative environment to foster, nurture and enrich high quality research and scholarship. The Network is inclusive and forward-looking and seeks to bring together emerging, mid-career and established scholars to build excellence in the field and provide peer support. Network activities are expressly designed to provide a supportive and collegial presentation environment in which meaningful discussion and constructive feedback are provided to the presenter.

I have been fortunate to attend 5 of the 6 Roundtables to date. There are many positive outcomes of the Roundtables, not least of which is the opportunity to meet and engage with people of like interest who are dedicated to the principles and objectives of ADR. The atmosphere is informal and decidedly collegial. Of critical importance is the opportunity to present a paper for supportive and constructive feedback. Papers are expected to be works in progress and not finished products already accepted for publication. In this respect, the Roundtable presents a golden opportunity to gain input from other scholars in a non-competitive and pointedly helpful environment. Those who give feedback are expected to do so respectfully and constructively. It is a particularly helpful opportunity and environment for HDR students, many of whom have attended Roundtables to date.

I can give you an example. I had put together a paper about the meaning of impartiality in mediation based upon interviews with mediators. I thought it was interesting and useful but it was rejected when submitted to a peer reviewed journal. I thought “don’t they get it?” and then “what do I need to do to improve it?” Apart from rethinking the choice of journal, I became aware that the paper lacked an explicit theoretical framework. I presented the paper at the Roundtable. I was able to ask questions about how it could be improved and in particular what theoretical framework I could use to ground the data I had collected. I was given excellent feedback. A reviewer suggested that to them the central issue and possible framework was justice in mediation – how obvious! Yet I had been too close to the material to see this perspective. In addition, I was able to hear and gather ideas from wider discussions which helped me place my work within other current themes considered by researchers. I reviewed and rewrote my paper. I then presented it at the Non-Adversarial Justice Conference in 2017 and became eligible to submit it to the Journal of Judicial Administration. It was accepted:

Susan Douglas, ‘Constructions of Impartiality in Mediation’ (2017) 26 Journal of Judicial Administration 232.

A researcher’s work life can mean long hours of inward focus – reading, thinking, reading, thinking, talking to one’s self. A HDR student’s lot can feel isolating and daunting. I have always come away from the Roundtables feeling invigorated by the discussions and nurtured by the collegial atmosphere. I encourage you to send in a proposal for a paper. See details below and …. flowers from Dunedin where the 2017 Rountable was hosted by Otago University.