On 1st and 2nd February 2021, the University of Newcastle hosted the 9th ADRRN Round Table and Civil Justice Research Conference. The proceedings brought together online twenty six leading world scholars from around Australia, New Zealand, Bangladesh and the United Kingdom to present papers and discuss themes of topical interest to dispute resolution.

A theme which emerged from conference papers, and which is taken up in this post, is the reconciliation of competing interests which are valued by the traditional justice institutions and dispute resolution theory respectively. In her paper “Is Civil Dispute Resolution all about how best to balance competing objectives?” Sonya Willis observed that the most efficient solutions lack procedural protections and the fairest solutions come at a cost which makes them unjust or just plain unavailable. Juxtaposing four conflicting imperatives of civil dispute resolution, (efficiency and due consideration; certainty and flexibility; privacy and openness and autonomy and control) the author argues that acknowledging those imperatives involves acceptance that they are irreconcileable and that achieving optimal outcomes through ADR means striking a balance in which some measure of each value is sacrificed in the interests of achieving an overall better outcome than would otherwise be available under the competing imperatives.

This is a conundrum that has long troubled both civil justice and dispute resolution theorists. In 1997 it prompted former High Court Chief Justice Brennan to express concern that the diversionary procedures offered by dispute resolution processes would deliver “…a cheaper but a less satisfying form of justice.” (G Brennan Key Issues in Judicial Administration (1997) 6 Journal of Judicial Administration 138 at 141). It troubled Justice Ronald Sackville when he wrote that the functions performed by the courts cannot always be discharged in a manner that is compatible with heightened expectations of cheap and swift justice. (R Sackville: Reforming the Civil Justice System: the Case for a considered approach in Stacy and Lavarch (eds) Beyond the Adversarial System (Federation Press 1999 p35). Perhaps it also troubled Professors Jonathan Crowe and Rachael Field when, in their paper “Intuition and Artestry in Mediation: Implication for Mediator Ethics, they observed that mediators should not only meet minimum standards of competence but should attain higher levels of expertise. Drawing upon social scientific research on intuitive decision making, the authors argue that such research has important implications for how mediators respond to ethical dilemmas. They propose a guided framework for mediation practice that “leaves room for mediators to exercise and enhance their capacity for ethical judgment.” If mediators are to engage in the exercise of addressing a balancing of competing interests between efficiency and due consideration, between certainty and flexibility, between privacy and openness and between autonomy and control, it makes sense that they should be properly equipped to exercise that judgment in a sophisticated manner with emotional maturity and from a sound ethical framework.

The balancing of competing civil dispute resolution imperatives in practice and the methodology employed by mediators to resolve ethical dilemmas, like so much of mediation practice, are largely unknown quantities. This is largely because of the confidentiality provisions surrounding mediation and the private nature of the process. In her paper “Evaluating Mediators – stepping off the beaten track” Dr Alysoun Boyle reported on the key outcomes of a major analysis of empirical studies into mediation using a metaresearch framework. She reported that: “…in the absence of significant changes in research approach and design, there is unlikely to be any increase in what is known – including about what mediators do in mediation, how they might influence what happens during mediation and how they might influence the achievement of mediated outcomes and their content.” The author proposes a significant review of the research methodology to be employed in approaches to research into dispute resolution practices and observes that there may well be opportunities for leadership roles for bodies such as the ADRRN Network.

Though held online for the first time in 2021, the ADRRN Round Table and Civil Justice Research Conference was again successful in delivering an impressive suite of research documents which will no doubt inform civil justice and dispute resolution research into the future. This brief post has drawn attention to one of many themes which were explored during the conference. We hope to feature others in coming weeks.

One of the greatest joys of academic work is the opportunity to discuss big ideas with colleagues. To really get into the details of another person’s work, think through the issues together, and receive critique on our own work – all in a supportive, engaged group.

For nine years, the ADR Research Network has offered precisely that opportunity to established academics and early career researchers from around Australia. Since that first meeting, our membership and scope has expanded, and this year we welcomed participants from Australia, New Zealand and the United Kingdom. And for the first time, the Roundtable was combined with another established research and teaching conference, the Civil Justice Research and Teaching conference, which has been the main meeting of academics who teach and research in what is sometimes known as ‘civ pro’ (civil procedure) – or more commonly these days ‘civil justice’ or ‘civil dispute resolution’.

We look forward to the 10th Research Network meeting, which is scheduled for February 2022 at Bond University on the Gold Coast. As always, we invite early career researchers and especially PhD students to take part, and encourage any readers who are also supervisors to extend that invitation to their students. A call for papers will be made on this site towards the end of 2021.

In the meantime, here’s the conference program from the 9th meeting, which provides an insight into the range of topics covered this year, together with the abstracts of the papers and the bios of the presenters. Keep an eye out for much of this excellent work coming out in journal articles and other formats throughout 2021.

The 9th Australasian Dispute Resolution Research Network Roundtable, held this year in conjunction with the Civil Justice Research and Teaching Conference, was held on 1-2 February and hosted by the University of Newcastle Law School.

Every year the Roundtable provides a unique perspective on the ‘state of the art’ in dispute resolution research – and this year was no exception. For the benefit of those who could not attend, this post draws insights from one section of the many conference papers – those focussed on the technological change that has been hastened by COVID-19.

The Covid19 pandemic required courts, tribunals and dispute resolution providers to rapidly ‘pivot’ to keep providing services during the pandemic. As Dr Joe McIntyre observed in his paper,

The last five years have seen significant developments in the use of digital justice technology globally. Australia has, in contrast, been relatively slow moving in embracing the use of such technologies to improve the efficiency and accessibility of its courts. The sudden shutdown required to respond to the 2020 global pandemic forced jurisdictions around the country to rapidly cobble together technological solutions to allow emergency access to the courts to continue…

Joe’s paper highlighted what he sees as a potential upside of the pandemic-driven technology shift – that we might be might be willing to shift our mindset to embrace a broader conception of the role of a court. His paper also highlighted some of the practical work he’s been doing on an online mechanism for resolution of tenancy bond disputes.

The Roundtable provided early insights into some of the excellent empirical work undertaken during 2020 on the disruption and innovation seen internationally in the civil justice sphere.

The Roundtable provided early insights into some of the excellent empirical work undertaken during 2020 on the disruption and innovation seen internationally in the civil justice sphere.

Associate Professor Genevieve Grant undertook a study of 37 lawyers about their experiences of hearings undertaken both online and by phone. Her findings reflected a wide range of experiences and both the advantages and disadvantages of hearings at a distance.

In New Zealand, Dr Bridgette Toy-Cronin has been looking – both pre- and post- pandemic at the telephone mediation of rental disputes. While this research was already important in 2019, it has acquired new urgency during 2020 as telephone mediation has become more widespread. While the ‘low tech’ solution of telephone can make it accessible for those not able to engage with video technology like zoom, the medium presents its own unique challenges.

Tayne Redman, is a lawyer at the Accessible Justice Project, which is an organisation established bythe University of Adelaide and law firm Lipman Karas – and which operates as a not-for-profit law firm. Tayne’s presentation highlighted the intense community demand for innovative and cost-effective delivery of legal services – now more than ever for the ‘missing middle’ who can neither afford legal advice nor are eligible to receive legal aid.

My own research, currently still at the stage of data analysis, unintentionally examines the impact of covid on innovation in law firms and legal education. Like many researchers, my team collected data during 2020, which meant that participants’ thoughts were naturally attuned to the impact of the pandemic. That study, designed to understand how legal actors conceptualise and respond to ‘innovation’ has highlighted the beneficial effect that a rapidly emergent situation can have on innovation. Not only is the speed of innovation, by necessity, sped up, the need for rapid change can dampen the impact of path dependency and lessen resistance to change.

What, then, is the way forward for the legal profession, legal institutions, lawyers and academic in this new environment? I think it’s summed up beautifully by one of my interviewees, the Dean of a large law school:

It’s important to consider the relationship between research and its contribution and its community – it’s at its best when there’s mutual understanding. We have brought a sense of mutual understanding much more clearly back into the frame as a result of COVID-19.

We need to focus on what communities and businesses need, and to design solutions that meet those needs. We need to keep building new and innovative partnerships between the academic sector, the public sector and the private sector, and bring lots of voices into the conversation. We also need to carefully evaluate solutions that have been implemented quickly, before allowing temporary fixes to become more permanent. It is reassuring that there is so much important research from the Network continuing in 2021.