About Associate Professor Becky Batagol

Dr Becky Batagol is an Associate Professor of law at the Faculty of Law, Monash University. She is a researcher and teacher with a focus on gender, family law, family violence, non-adversarial justice, dispute resolution, gender, child protection and constitutional law. Becky is the co-author of Non-Adversarial Justice (2nd ed, 2014), Bargaining in the Shadow of the Law? The Case of Family Mediation (2011) and the author of many academic articles. Becky, alongside Dr Jessica Mant, is the President of the Australian Dispute Resolution Research Network in 2024-25.

Duffy’s Dispute Resolution: A Profile of ADR Network Member James Duffy

Posted on 29/09/2015 by Associate Professor Becky Batagol

As part of our occasional series profiling ADR Network Members, we profile James Duffy, law academic at Queensland University of Technology Law School in Brisbane.

Where does research fit in your professional work?

Research into ADR sits alongside other research I do in the fields of psychology and law and the scholarship of teaching and learning. This is balanced with the teaching of lots of undergraduate law students at QUT.

2. Why did you become interested in the dispute resolution field?

I spent two years working for different judges in the Queensland Court system (1 year in the Queensland District Court and 1 year in the Queensland Court of Appeal). Being in and around the courts exposed me to the difficult life events that many people encounter. The human and emotional costs of taking a matter to court appeared to be really taxing upon people. I became interested in forums that parties could use that would allow them to speak their peace and be listened to by another person, without the expense and formality of court proceedings. In many instances, taking a matter to court seemed like overkill to me. It reinforced the idea that the substance of legal disputes was important, but the way they were resolved (procedurally) was just as important.

3. What is your particular area of dispute resolution research interest?

I’m interested in the psychology behind ADR forums and how the answer to a legal problem is often found in a non-legal solution. I’m not sure that I will ever be able to say that my particular area is X, or I have specialised knowledge in X area of ADR. I like to be a generalist, and know a little bit about a lot of different areas. At thisstage, I haven’t done a PhD, so that might focus things a little bit.

4. Whose research has influenced you? Why/How?

I like reading work by authors that has a more literary feel to it. Carrie Menkel-Meadow is always good to read. Marjorie Silver is the same. I find myself citing Laurence Boulle a lot, because he has already written about every idea that I seem to come up with (which is actually quite frustrating when you think you have stumbled across a novel idea.) I genuinely enjoy reading work from other members of the ADR research Network. When you have had a chance to hang out with other academics and get to know them a bit better, reading their articles is fun. I’ve lost count of the number of times I’ve though to myself “shit, I wish I had that idea first, how clever!” More generally, I like reading articles or books where the authors have a beautiful way with words – particularly those that flout the usual rules for peer reviewed journals.

5. What dispute resolution research are you involved in at the moment?

I have two articles in the back of my brain that are waiting to come out. One on the neuroscience surrounding emotion in ADR forums, and another suggesting that positive psychology principles explain why people mediate. I’m looking forward to a bit of connected research time to commit these thoughts to paper.

6. Where would you like to take your dispute resolution research work over the next ten years?

I don’t know what I’m doing next week, let alone in ten years time. Quantitative empirical work.

7. What advice do you have for emerging dispute resolution researchers?

Have a coherent story you can tell yourself (and others) about why dispute resolution research is important. Depending on the University faculty you are part of, dispute resolution research may not be viewed as favourably as other areas. Secondly, if you are from a legal background, try and skill up in research methods apart from doctrinal research. Good empirical research is very publishable.

Much Excitement, Live tweeting ahead

Posted on 11/09/2015 by Associate Professor Becky Batagol

photo courtesy State Library of Queensland

Here at the ADR Research Network we are proudly hosting our 4th Round Table at UNSW, Sydney this Saturday 12 & Sunday 13 September. We have 15 papers, each with a commentator and facilitator, two plenary sessions on developing ADR research and around 20 excited attendees, ranging from Professors of ADR in Australia and Canada to ADR professionals and PhD students. Lots of time has been left for discussion of papers and informal chats. Papers discussed are works in progress and we aim to harness our collective expertise to make the dispute resolution research presented even better.

We will be live tweeting the event for our Twitter account @ADRResearch and are posting some paper summaries here in our blog. Papers presented include

Family Dispute Resolution in multicultural and multi-faith Australia
Mediator Effectiveness
Accessing “justice” outside of courts and tribunals
Conflict in Planning Disputes in Melbourne
Discerning the Seat of Arbitration
The role of local government in NSW in the referral of disputes to alternative dispute resolution services
ADR: A European Perspective

Stay tuned!

Is ADR taking over?

Posted on 03/09/2015 by Associate Professor Becky Batagol

A recently published article came across my desk today and I thought it was worth mentioning here in our blog, because it covers a newer form of dispute resolution in a highly commercialised area of law: takeover disputes. I admit I don’t know much about takeover law and maybe that’s because so many of us involved in dispute resolution are not commercial law-type people. That’s a shame because commercial law and ADR should and do go hand in hand.

Ian Ramsay, Professor of commercial law at the University of Melbourne, has recently published this excellent article on takeover panels as an alternative to litigation for resolving takeover disputes. The Australian Takeover Panel has operated since 2000 and was established to reduce tactical litigation by target companies wanting to resist takeover bids. The takeover panels, according to Ramsay, has proven a low- cost and efficient forum for the resolution of takeover disputes and is used by both private parties and regulators such as ASIC.
The piece is worth a read, whether you are commercially- minded or not.

Social and Legal Perspectives of Dispute Resolution: Introducing Susan (Sue) Douglas

Posted on 29/06/2015 by Associate Professor Becky Batagol

Continuing our series introducing ADR network members we speak to Dr Susan Douglas.

Sue is employed as a Lecturer in Business Law, Faculty of Arts and Business, University of the Sunshine Coast. She also works with the Suncoast Community Service as a member of that organisation’s management committee and as a volunteer legal practitioner. Sue has been a member of the Maroochydore Neighbourhood Centre management committee for many years. Her particular contribution to university service is as a member of the Human Research Ethics Committee. She has an interest in socio-legal perspectives in dispute resolution and in qualitative research.

Why did you become interested in the dispute resolution field?

I first became interested in ADR as a social worker working in child protection. I conducted assessments around children at risk and would be called to attend the Children’s Court to give testimony. It was very obvious that the adversarial (albeit modified) process of investigating questions of risk was fraught with difficulties for the families at risk. At that time mediation was in its early years and as a movement promised the prospect of an alternative more appropriate to socio-legal issues in dispute resolution.

What is your particular area of dispute resolution research interest?

My particular area of interest is socio-legal perspectives in dispute resolution. My background in law and social work gives me a useful vantage point from which to consider the intersecting contributions of law and the social and behavioural sciences. Mediation, in particular, has really developed from the combination of the social and behavioural sciences and law. Practitioners and scholars recognise this, of course. I am always eager to spell out those connections, develop them and learn from them. I am also keen on developing understanding of DR from the ground up and hence in gathering the perceptions and understandings of practitioners for developing theory. I like talking to mediators about their experience and how they make sense of their practice and I enjoyed this aspect the most in completing my PhD.

Whose research has influenced you? Why/How?

I am particularly appreciative of the work of others in the ADR Research Network and am influenced by the direction of their research interests and enthusiasm. It’s wonderful to have a collaborative forum through which to share ideas and experiences and from which to gain support and encouragement.

I was particularly influenced by Hilary Astor’s work when I began pursuing research into mediation. Hilary’s work demonstrates great scholarship and a critical appraisal as well as commitment to developing theory for practice. Her work on neutrality in mediation was the starting point for my own investigation as the subject of my PhD. Established scholars and contributors such as Laurence Boulle, Dale Bagshaw, Ruth Charlton and Micheline Dewdney and many others have influenced me. I have been keen to understand models that are alternative to the classic, facilitative model and have of course been influenced by Winslade and Monk and Bush and Folger. Narrative and transformative models have particular resonance for me with social work practice and principles. I have also found that the mediators I have interviewed for research purposes like to include at least aspects of these models in their practice.

What dispute resolution research are you involved in at the moment?

I am pursuing two projects in Family Dispute Resolution Practice (FDRP) with the Maroochydore Family Relationship Centre (FRC). I really enjoy the contact with the FDRP’s there and the manager/ co-ordinator of the service. One project is an investigation of what the FDRP’s see as ethics issues for their practice and another is an evaluation of a joint project between the FRC and the Suncoast Community Legal Service in providing legal advice.

Where would you like to take your dispute resolution research work over the next ten years?

Ten years is a long time ! I would like to be doing a series of qualitative studies with practitioners and see what issues emerge for them and from that survey larger populations around key issues. I would like to do more in relation to collaborative research projects. The Network certainly has the potential to harness the energy of participants into lots of interesting, engaging and relevant collaborative projects.

What advice do you have for emerging dispute resolution researchers?

It can be very isolating when doing a higher degree by research and there are perhaps very few research positions in the DR industry. It’s helpful to be part of a peer group for support and encouragement. The Network is also a forum for introducing and encouraging newer researchers, for sparking enthusiasm and new ideas, and for lending experience to emerging researchers. There is always so much to learn about research and new avenues to explore; it’s always emerging even for those with experience.

Get to know Dr Lisa Toohey from UNSW Law School

Posted on 22/06/2015 by Associate Professor Becky Batagol

As part of our series of posts introducing ADR Research Network members, we meet Dr Lisa Toohey. Lisa is a Senior Lecturer and director of dispute resolution programs at the Faculty of Law at the University of New South Wales in Sydney.

Here, she answers a few questions about her career in dispute resolution.

Where does research fit in your professional work?

My work in dispute resolution is very much as an academic – researching, teaching and supervising postgraduate students. There is a very important link between teaching and researching, where each informs the other. However from time to time, I have also worked on international development projects with an ADR dimension, including in Azerbaijan and Vietnam – those projects are both challenging and rewarding as they bring in questions of culture and the transfer of ideas from one legal system to another.

2. Why did you become interested in the dispute resolution field?

Perhaps dispute resolution found me – as an undergraduate student studying law and German, I was preparing to take part in the Willem C Vis International Commercial Arbitration Moot. While waiting for my moot document to print on a university printer, out came instead some work on dispute resolution (in German) by Professor Nadja Alexander. Nadja then appeared to pick up her printing, and we fell into conversation. I subsequently became her research assistant, and the rest, as they say, is history! Working for Nadja, I learned about the field of dispute resolution, and discovered my interest in curriculum design and teaching. After graduation, I spent several years working as a commercial lawyer but was drawn back to the academic life in 2002.

3. What is your particular area of dispute resolution research interest?

It’s actually quite diverse, but with a single core question. At a domestic level I am interested in how individuals construct ideas about their dispute resolution options – what makes them litigate or mediate, and what role do lawyers have in that process. But the majority of my work asks the same essential questions about states in the international system, especially in the trade law context – how do states address their trade disputes, and what leads them to prefer one option over another. There, I focus mainly on the involvement of Asian states in the World Trade Organisation.

4. Whose research has influenced you? Why/How?

The article that was most influential for me was Marc Galanter’s “Justice in Many Rooms” (1981) in volume 19 of the Journal of Legal Pluralism. It highlighted for me what was wrong with my very black letter law education and opened my eyes to socio-legal approaches to law. There is so much in that article, but my favourite quote is (at p.14) “Just as health is not found primarily in hospitals or knowledge in schools, so justice is not primarily to be found in official justice-dispensing institutions. Ultimately, access to justice is not just a matter of brining cases to a font of official justice, but of enhancing the justice quality of the relations and transactions in which people are engaged.”

5. What dispute resolution research are you involved in at the moment?

Two projects – the first is how China’s views of international dispute settlement have changed over time. The second is a team project funded by the AIJA that looks at how individuals in a family law dispute gain an understanding of their dispute resolution options.

6. Where would you like to take your dispute resolution research work over the next ten years?

I would like to expand my empirical work – for example with a project that better understands how business people use (or don’t use) law as a means of addressing their business disputes. For example, at what point does a building subcontractor see his business problem in legal terms, and what does that mean for the dispute resolution options that the contractor may adopt.

7. What advice do you have for emerging dispute resolution researchers?

Be persistent and have confidence in the value of your research – as a field there is so much to be done. And talk to established academics – the dispute resolution field has some of the most generous academics that you will ever encounter when it comes to supportive feedback and mentoring.

An economist and a lawyer went to lunch… reflections of the Productivity Commission’s Access to Civil Justice Inquiry

Posted on 29/01/2015 by Associate Professor Becky Batagol

The Australian Centre for Justice Innovation (ACJI) and the Australian Institute of Judicial Administration (AIJA) are hosting a lecture on the Productivity Commission Access to Justice Arrangements Inquiry. The report, released in December last year, had made many recommendations regarding dispute resolution and access to justice, including increased use of ADR by the courts.

The lecture will be delivered by Dr Warren Mundy, a Commissioner of the Productivity Commission and the Presiding Commissioner on the Commission’s Access to Civil Justice Inquiry.

In this lecture, Dr Mundy will reflect on the findings and recommendations of the Productivity Commission’s inquiry into Access to Civil Justice. In particular, he will explore the application of economics to the examination of civil justice policy and institutions and discuss future challenges to improving access to civil justice.

This lecture precedes a full day seminar on 26 June 2015, jointly convened by ACJI and AIJA. Further details will be provided at a later date on the AIJA and ACJI websites.

A flyer for the lecture to be held in the Melbourne CBD at 12.30 pm on Friday 13 February 2015 an be downloaded here.

2015, Here Comes the Sun

Posted on 29/12/2014 by Associate Professor Becky Batagol

The year is almost finished and it is the season for reflection and resolution. Here at the ADR Network, we thought it would be a great time to collect information on forthcoming dispute resolution conferences, meetings and workshops for 2015.

Our plans for this blog are to continue with more regular posts throughout 2015. You will see more from dispute resolution academics and practitioners with high quality, critical perspectives on dispute resolution. We are introducing guest posts to provide an even broader range of views. If you would like to follow the discussion between top Australian ADR scholars on the issues raised in the posts, make sure you read the comments sections. And of course, we welcome your own comments and feedback. If you follow our Twitter and Facebook accounts, you will see even more frequent ADR news from us.

Australasian ADR Events

Dispute Resolution Research Roundtable, Sydney, September 12-13
The ADR Research Network has decided to host our first ever Dispute Resolution Research Roundtable on 12-13 September 2015 at the University of NSW, Sydney. In running this small roundtable we aim to provide a collegiate and supportive environment to enable dispute resolution scholars to receive constructive feedback from other participants. Higher degree by research (including honours, masters and PhD students) are especially encouraged to apply. A limited number of papers will be accepted to allow time for high quality discussion of work presented at the Roundtable. We will provide further information via this blog early in 2015, so please follow this blog/ subscribe.

Aotearoa Conference on Therapeutic Jurisprudence, Auckland, 3-4 Sept
The 2015 Aotearoa Conference on Therapeutic Jurisprudence will be held at the University of Auckland, New Zeland on the 3rd and 4th of September 2015. Therapeutic jurisprudence is an approach which aims to reduces the psychological harm caused by law and increase psychological wellbeing through law. Therapeutic jurisprudence shares with ADR a concerns to address all aspects, including non-legal aspects of a problem. TJ is also expressly multidisciplinary. The call for papers is open until 30 April 2015.

Restorative Practices International Conference, Hobart, 23-25 March
The Restorative Practices International Conference will be of interest for dispute resolution practitioners. There are many commonalities between restorative processes and dispute resolution, especially the importance of understanding the broader context, the commitment self determination and outcomes built through negotiated partnerships. The conference is being held on 23 – 25 March in Hobart, Tasmania. The aim of the conference is to discuss and support the development of restorative practice in schools, prisons, workplaces, organisations, families and communities. The conference theme is building restorative communities – in education, justice, cities, families, faith groups, neighbourhoods, defence and workplaces. The call for papers closed in December however early bird registrations are open until 23 January.

The 2016 National Mediation Conference, Gold Coast, September 2016
Australia’s National Mediation Conference will be held in September 2016 on the Gold Coast, Queensland. http://www.mediationconference.com.au/files/NMC%202016%20Announcement%20slideshow.pdf

ADR Events Further Afield

American Bar Association Dispute Resolution Section Spring Conference, 15-18 April , Seattle, Washington
American Bar Association Dispute Resolution Section Spring Conference, 15-18 April 2015, Seattle, Washington, USA. The largest conference for dispute resolution professionals in the world. Legal Educators Colloquium is being held on Saturday April 18 from 8.00am-4.00pm where American dispute resolution academics get together to discuss sector approaches.

Mediators Beyond Borders congress, April 23-25 2015, Bucharest, Romania
If you are interested in peace building and mediating large-scale conflict, the Mediators Beyond Borders biennial congress is being held on April 23-25 2015 in Bucharest, Romania. Desmond Tutu is the opening keynote speaker who will appear by video link. The Conference presentations and workshops will focus on the following themes:

Peacebuilding processes and women
Historical conflicts and divisions
Emerging conflicts and tensions
Climate change related conflicts
Opportunities and challenges for conflict transformation through trauma informed peacebuilding and restorative justice practices.

The call for papers has closed and early bird registrations are open until 14 February 2015.

XXXIVth International Congress of Law and Mental Health, Vienna, 12-17 July
XXXIVth International Congress of Law and Mental Health is being held in Vienna, Austria from 12-17 July, 2015. This is a very large biennial conference involving psychologists, psychiatrists and psychotherapists who work in forensic and legal settings. The conference runs a dedicated ‘therapeutic jurisprudence stream which is highly interdisciplinary and international. The call for papers is closed and there is a discount registration rate for students.

Association for Conflict Resolution (ACR) Conference, October 7-10 in Reno, Nevada, USA
The ACR Conference is on October 7-10 in Reno, Nevada, USA. ACR aims to improve the practice of dispute resolution in the US as well as to enhance public understanding of dispute resolution. This is a large practitioner oriented conference with around 600 attendees and 50 workshops. The call for papers has closed and registrations will open in 2015. Slides from the 2014 conference are available.

ADR Institute of Canada Conference, Calgary, Alberta, 29-30 October
The ADR Institute of Canada is holding its annual national conference in Calgary, Alberta on 29-30 October 2015. The ADR Institute is the professional regulatory body for dispute resolution practitioners in Canada. The conference is practitioner oriented, covering arbitration, mediation and other forms of dispute resolution. If you’d like to get a sense of the conference, the Institute has its own YouTube Chanel where you can watch past conference keynotes.

Are there any other dispute resolution events in 2015 we’ve missed?

Wishin’ and Hopin’: ADR Policy in Victoria

Posted on 16/12/2014 by Associate Professor Becky Batagol

The past couple of years have seen dispute resolution increasingly politicised in Australia, as we have explained elsewhere. The Victorian election, held on 29 November this year and which resulted in a change of government, is no exception.

The new Australian Labor Party (ALP) government has made an explicit commitment to increasing use of ADR in Victoria. The government’s pre-election platform states (at p 67-8):

Where disputes occur, Government should provide Victorians with options to resolve them at the earliest stage to avoid the cost, stress and delay that is often a feature of traditional court proceedings.

Specific policies promised in relation to ADR include increased promotion of mediation and ramping up the dispute resolution options at VCAT, the Victorian Civil and Administrative Tribunal, so that it is restored as “a simple, low cost jurisdiction that assists parties seeking speedy resolution of their matters in a less formal and intimidating environment.”

The government has also committed in its platform to providing increased access to justice for vulnerable Victorians (p.67). It has promised an inquiry into access to justice in Victoria including into availability and funding of Community Legal Centres (CLCs). Specific measures pledged to improve access to justice include increased funding for Victoria Legal Aid, addressing “the clogging of the court system”, fixing the problems with funding cuts at VCAT and encouraging more lawyers to work at Community Legal Centres through providing incentives such as scholarships and HECS rebates.

Related promises in the ALP platform include mainstreaming into the broader court system some of the successes of the problem-oriented courts set up in Victoria over the past decade (p.64) so that offenders are better connected to the services they need to address their offending.

While the previous government was in power Victoria from 2010-14, ADR policy moved slowly at best. The Attorney-General for that government, Robert Clark, had publicly expressed his commitment to ADR, stating to the LEADR Kongress in September last year: “The State government is a strong supporter of ADR and the role it can play in bringing about just outcomes in a timely and cost-effective manner.” However the record of the coalition government supporting ADR did not match these words when, in 2011, it repealed legislation containing broad-scale pre-action procedures mandating participation in ADR for all civil disputes before the courts. In passing these reforms, the Attorney-General stated in Hansard on 10 Feb 2011 (at p 307):

It is common sense and good practice for parties to attempt to resolve their dispute without resorting to litigation if there is a reasonable prospect of success in such an attempt. However, the government’s view, and the view of many practitioners, is that to seek to compel parties to do so through these heavy-handed provisions will simply add to the complexity, expense and delay of bringing legal proceedings, because of the need to comply with these mandatory requirements, whether or not they are likely to be useful in any particular case.

It is regrettable that the legislation was repealed without any evidence base of the effectiveness of the reforms or independent testing of the Attorney’s claims.

It remains to be seen whether the deeds of this new Victorian government match its words. The fact that ADR and access to justice were explicitly part of the policy platform prior to the election is promising. The new Attorney-General, Martin Pakula, has big shoes to fill, his Labor predecessor being Australia’s most reformist AG, Rob Hulls (Lionel Murphy having fewer years in the job).

While we wait to know more from the government in Victoria, here’s my personal wish-list for the Attorney-General to tackle in relation to dispute resolution/ ADR policy reform in Victoria

A public review of the quality and effectiveness of ADR processes in Victoria. ADR is offered in every Victorian court and by many other state providers. But we know little about the quality of services offered (including settlement rates, satisfaction, inter-professional collaboration around the process and the fairness of outcomes). The Productivity Commission recently called for all State and Territory governments to conduct an independent public review of the effectiveness and efficiency of dispute resolution mechanisms within their jurisdiction every 5 years, starting by 30 June 2016 (p.298). Such a review would be a good start for a government intent on making an impact where there is already significant state outlay on ADR services and efficient justice investment is an imperative.
Mandating public reporting on standard ADR data by all Victorian ADR service providers (including courts and tribunals, Community Legal Centres, Victoria Legal Aid and other dispute resolution services such as the Dispute Settlement Centre of Victoria, or DSCV). Higher quality and consistent data collection would enable us to understand whether existing ADR services meet their aims and whether gaps in service provision exist. Higher quality data means that money can be efficiently allocated where there is highest need. The public availability of such data is crucial to ensure transparency in provision of dispute resolution services when ADR lacks the many of the fairness protections available in the public court system. The absence of adequate dispute resolution data was noted by the Victorian Law Reform Commission (VLRC) in its 2008 report on Victoria’s civil justice system in relation to the effectiveness of court-ordered mediation in Victoria (at pp 278-83). In 2009, when the Victorian Parliament’s Law Reform Committee recommended that

At a minimum, the Committee believes that there is a need for consistent data collection across ADR service providers about:

-settlement rates

-factors that may influence settlement rates, such as referral stage

-what happens when disputes are not settled at ADR

-participant satisfaction with ADR and perceptions of fairness the time and costs expended by participants and service providers. (pp. 58–59)
Widespread use of family group conferences for child protection matters usually commenced in the Children’s Court of Victoria. In 2010, just prior to the State election in that year, the Victorian Law Reform Commission set out a range of options for reform of the processes followed in child protection cases in the Children’s Court of Victoria. One of the options canvassed involved a graduated range of supported, structured
and child-centred agreement-making processes as the principal means of determining child protection application outcomes instead of existing court processes. The Commission noted that most agreements in child protection matters are already the result of informal bargaining between the parties’ lawyers (at para 7.4) and that supported and child-centered processes such as family group conferences would better enable agreements that are in the best interests of the children involved and which stick in the longer term. These options for reform were never implemented following the 2010 election and may yet help to ensure that scarce resources already invested in Victoria’s child protection system are directed towards assisting vulnerable children have care arrangements that meet their best interests.
Better connecting and integrating state-funded family violence and police services with federally-funded Family Dispute Resolution (FDR) services so as to better protect those experiencing family violence. In 2010 the Australian and NSW Law Reform Commissions’ joint inquiry into family violence concluded that there was potential for FDR to expeditiously and effectively resolve parenting disputes in cases involving family violence but that there had to be better coordination with State and Territory child protection and family violence systems (at paras 21.12-21.13 and 21.50). The Luke Batty case has clearly demonstrated the need for more effective coordination of state-based family violence and police services and services within the federal family law system. The Victorian government has committed to holding a royal commission into family violence. By committing to work specifically with FDR providers including Family Relationship Centres and Victoria Legal Aid’s Roundtable Dispute Resolution, the Victorian government can help to provide avenues for seamless, safe and supported decision-making following family breakdown for women and children experiencing family violence.

So, that’s my list. What is on your personal wish-list for ADR policy reform in your State or locality?

Becky Batagol would like to disclose that she worked for the Victorian Law Reform Commission on its inquiry into Protection Applications in the Children’s Court of Victoria in 2010.

Australia, all the way with ADR. Or are we?

Posted on 07/04/2014 by Associate Professor Becky Batagol

I have been putting the finishing touches on my chapters for the second edition of our book Non-Adversarial Justice, to be published by Federation Press in the middle of this year. The book is co-written with Monash and former Monash law colleagues Michael King (now a Magistrate in WA), Arie Freiberg and Ross Hyams. The book brings together a collection of ideas and practices from disparate areas of the criminal and civil justice system that share some common responses to the adversarial nature of our legal system. We describe these processes as ‘non-adversarial justice’ which we acknowledge is a vague and probably overly negative term, but we have stuck with it because we haven’t been able to come up with anything better. The book explains our views on these commonalities and provides a chapter on the key aspects and ideas of each ‘non-adversarial’ practice or process, including therapeutic jurisprudence, ADR, restorative justice, preventive law, holistic law and creative problem-solving. The are also chapters which situate these ideas in various fields of practice and chapters which thematically draw together new ways of thinking on lawyers, courts and legal education. The book focuses on Australia with reference to international developments.

The first edition book came out in 2009. In this new edition, we look back over the past 5 years of innovative Australian justice policy and conclude that:

“Because non-adversarialism is new and contentious it is also politically sensitive. Governments that regard this form of justice as being “soft” on crime, ineffective, “heavy-handed”, and expensive have abolished courts, schemes and programs while others recognise their value and have introduced procedural reforms, increased the number of courts and expanded their jurisdiction to cover new areas of harms or problems.”

I have been updating the chapters on family law processes and on ADR. Once of the things I enjoy about writing this book is how each chapter gives me a near-perfect helicopter-view of the terrain of that area. In relation to ADR policy, there has been a noticeable cooling in government attitudes towards ADR processes within our broader civil justice system in the past half-decade. In particular, I have observed a drawing back from widespread implementation of ADR requirements in the justice system. This is evidenced by the repeal of pre-action legislation in both Victoria and NSW in 2011 and 2013 and, also in 2013, the dissolution of the 18-year-old National Alternative Dispute Resolution Advisory Council (or NADRAC), the independent body established to advise the federal Attorney-General on policy issues relating to ADR. In our book we summarise the Australian ambivalence towards ADR in the following way:

“These changes illustrate how the place of ADR and other non-adversarial processes in the justice system is contingent upon the support and patronage of government. Real resistance to non-adversarial practices remains and can make even established non-adversarial processes the subject of political contention. “

Pre-action procedures, originally developed in England and Wales in the late 1990s, encourage early settlement of disputes, full disclosure of information between the parties and, where the matter cannot be resolved, the narrowing of the issues in dispute, all before proceedings have commenced. Effectively, they cement the place of ADR in the ordinary civil litigation process. Pre-action procedures have been introduced into three Australian jurisdictions since 2009, making this area the most dynamic in the already active field of ADR. However, the legislation introducing pre-action procedures has already been repealed in two of these jurisdictions (Victoria and NSW), revealing the significant unease that exists around the presence of ADR in the contemporary civil justice system in Australia, particularly where lawyers and the parties they represent are mandated to use ADR processes outside specialist jurisdictions. Only at Commonwealth level do pre-action procedures remain a at broad-scale level in Australia, known as “genuine steps” statements, which must be filed prior to litigating in the Federal Court of Australia and the general lists of the Federal Circuit Court of Australia under the Civil Dispute Resolution Act 2011 (Cth). So far, the federal government has indicated no public interest in changing these laws.

In England and Wales, where there are more than 12 -pre-action protocols covering particular areas of civil law, a recent review of rules and principles governing the costs of civil litigation found that the decade-old pre-action protocols system generally worked well, with a few tweeks necessary here and there. However it was recommended that one protocol that covered all areas of civil practical not governed by a specific protocol be repealed. Lord Justice Jackson, author of the review, argued that pre-action protocols work best when tailored to specific areas of practice rather than adopting a “one-size-fits-all” approach to civil litigation generally.

The English and Welsh experience of pre-action protocols shows that they can change litigation cultures and encourage more settlement (although ADR processes themselves may not be used). For Australia, the implications are that we may be better placed to develop pre-action procedures tailored to the peculiar litigation dynamics of specific areas of civil practice rather than broad-scale requirements as currently legislated in the Civil Dispute Resolution Act 2011 (Cth). Indeed in Australia, some specialist jurisdictions have for some time successfully required participation in ADR before court proceedings can be instituted for certain personal injury claims in Queensland, for farm debts in NSW, for NSW retail tenancy disputes, and in family law disputes since 2004. Failure to comply with these requirements opens a party up to an adverse costs order.

The recent skittishness around ADR policy in Australia can be connected to new governments coming to power and signalling that a new sheriff is in town. These governments, in Victoria, NSW and at federal level, have not benefited from years of high level bureaucratic advice on justice policy, may not share the commitment to ADR and may prefer to appeal to more conservative elements of the legal profession who see innovative dispute resolution policy as a challenge to the profession itself. The legal profession is inherently conservative and is slow to embrace widespread change. For so long, litigation, alongside negotiation associated with litigation practice, have been the way that lawyers have furthered their client’s interests. Compelling parties to use ADR processes such as mediation is a step too far in the eyes of many, as Victorian Attorney-General Robert Clark explained in the 2011 second reading speech for the Civil Procedure and Legal Profession Amendment Act 2011 (Vic)

“It is common sense and good practice for parties to attempt to resolve their dispute without resorting to litigation if there is a reasonable prospect of success in such an attempt. However, the government’s view, and the view of many practitioners, is that to seek to compel parties to do so through these heavy-handed provisions will simply add to the complexity, expense and delay of bringing legal proceedings, because of the need to comply with these mandatory requirements, whether or not they are likely to be useful in any particular case.” (Parliament of Victoria, Parliamentary Debates, Legislative Assembly, 10 February 2011, Victorian Government Printer, Melbourne, p.307).

My own view is that governments across the Australian jurisdictions should be putting effort (and a great deal of effort, too) into ensuring that ADR processes that are provided are of high quality and have robust protections built in for the disadvantaged and vulnerable, acknowledging that not all cases should settle, although many can, so that court processes are still necessary and towards finding the right balance between legal and non-legal service provision for civil disputes. Getting these issues rights asks us to face the tough questions head-on and address the real tensions behind the ideal of access to justice in a constrained financial context. But this is the space we need to be in for us as a nation to develop the next frontier of justice policy. Whole-scale abolition of schemes designed to increase settlements as occurred in NSW and Victoria and dissolution of high-quality advisory bodies such as NADRAC takes us further away from where we need to be. These decisions have taken us backwards.

What do we all have to do to move forward on this important social issue?

Dispute Resolution, in Person, for Real

Posted on 03/12/2013 by Associate Professor Becky Batagol

So, I’m excited!

Along with 13 other members of the ADR Research Network, we have been meeting in the glorious sunshine at Queensland University of Technology’s Garden Point Campus this week. Meeting for real, in person. With coffee in hand and fuelled by victuals kindly provided by QUT law school, we have be discussing the most difficult aspects of dispute resolution theory and practice.

The ADR Research Network was founded in 2012 by a group of dispute resolution academics from across Australia. We live and work in the far corners of this big country, from Hobart to Townsville, from the Gold Coast to Bundoora. Some of us are mediators, some lawyers, some legal philosophers, educators and we all live and breathe dispute resolution. We had all met at conferences before and read each others’ work over the years and a few of us have even written together. But we wanted to do more than just see each other occasionally and referee each others’ work: we wanted to engage with each other on what we are working on, we wanted to debate the hard stuff, we wanted to share a laugh.

As well as running this blog, we have decided to write a book together, based around the theme of changing professional identities for both lawyers and mediators in dispute resolution. The increased use of ADR and institutionalisation of processes such as mediation challenge us to rethink the role of lawyers and mediators in dispute resolution. Questions arise such as is mediation now a profession? Is there a single mediation community or are there multiple communities of mediation practice? How do we train lawyers to achieve justice in mediation? What is the basis of an ethical decision making process for mediators? How best do we define mediation and is that important? Should neuroscience affect mediator practice?

The most exciting thing about our book project is that it is so collaborative in nature. Each chapter will be written by a single author but with extensive feedback from the group as a whole and from individual authors. This will create a highly reflective and tightly structured collection that we hope will be central to understanding contemporary dispute resolution practice.

We are still writing and putting together a book proposal. To give you a sense of what we are all writing about, here’s a way to see the tweets we have made over the past few days at the workshop. We have been using the hashtag #adrresearchnetwork. These tweets summarise the ideas raised by each author in our chapters and some of our thoughts around the table as a group.

Stay tuned …