By Alice Cooney

In 2000, when I was in high school, my grandmother made the announcement that she was beginning a law degree.  Although she had completed tertiary study later in life, my grandmother had left school at 14 to support her family during the Depression.  Believing in the ethos that you “learn something new every day”, my grandmother made that belief a bit more structured by enrolling in a Bachelor of Laws.

At the time, Facebook did not yet exist, MySpace hadn’t been created and the era of iPhones was another seven years away.  I distinctly remember asking my grandma if she was enjoying her study, and she complained that the course had a requirement that she complete an entire subject wholly online.  For someone who had grown up without computers, you could forgive her for feeling completely out of place in the online world.  Her computer was very good for a game of space invaders, and I can still hear the high pitched whir of the dial up modem logging in, but compared to what I use for my study now, I couldn’t imagine anything more archaic!

She was awarded her Bachelor degree at the age of 75 (due to some last minute recognition of her prior learning) and we had a pseudo graduation ceremony in her hospital room a week before she passed away from a brain tumour.  Now I often think that I would like to tell her about my experiences as a lawyer.  I want to tell her about my court cases, the challenges of self represented litigants and how her recommendation for me to study Latin as a teenager may not have been as ludicrous as I thought!  As I have been working through my Masters of Law, I have been thinking a lot about how studying law has changed and how online dispute resolution (ODR) would not have been a reality for her.

Since completing my law degree, I have worked as a sessional tutor, while working full time, and slowly progressed through my Masters.  The access I have to further study (including being able to attend a class on my phone whilst in a taxi on my way home from the office) means that I can simultaneously fulfil life goals and don’t have to wait until I am 70.  It has also allowed me to experience a change in study, and an alteration in the teaching techniques of legal academics.

Photo: JeongGuHyeok, Creative Commons

As the legal world embraces more forms of alternative dispute resolution, the academic world has looked at options to expand access to education.  One difficulty that I see has been the culture of instantaneous access to information, academics and feedback.  Allowing students to log in and live stream lectures or listen to recorded material at their convenience has been a wonderful asset to the profession.  The study of law is not quick though, the concepts are difficult, fraught with exceptions. Trying to reinforce the importance of the postal acceptance rule in a world where most young people have never sent a letter poses new issues.   There is an unrealistic expectation of students that academics will be available at their whim because there is now direct access like never before.  This instantaneous contact is not a reality with most clients and certainly not the case with accessing the courts.

Developing a skill set in ADR is incredibly important for lawyers, and the majority of legal disputes can and should be settled using these techniques.  The costs alone warrant this but it doesn’t mean the skills and techniques necessary for traditional legal practice should be undervalued.

Having recently completed a few subjects using online platforms, including Online Dispute Resolution (a part of or distinct to alternative dispute resolution depending on who you ask!), I see some challenges.  I followed this up with Copyright X, a subject based on content from Harvard University where all the lectures are actually on YouTube.  As I had previously been an on-campus student for my undergraduate degree, I found it difficult to embrace the online space for learning, despite being connected to my iPhone, iPad or computer at work (and socially!) no matter where I physically am.  I found that some of the classes were spent attempting to figure out how to recreate the classroom space in the digital world.

Just as ADR methods have had to depart from traditional legal processes, the learning space for studying these techniques will need to move away from trying to emulate what happens in a classroom.  Additional issues now seen in the online learning space include the internet dropping out, microphones not working, or unexpected visitors dropping in as experienced during the live interview of BBC correspondent Professor Robert E Kelly.

The issue of developing new ODR techniques, or teaching ADR concepts online, is that it can reinforce a disconnect with the reality of litigation if a proceeding is referred to a court or tribunal.  The delays in court dates and the continuing need to print copies of all materials in triplicate is broadening the divide between the much faster resolution offered by ADR and ODR processes.  Whilst speedy resolution is preferable, that cannot always be the case in law and students need to have well rounded experience to survive in this competitive profession.

In an accidental consequence of ‘keeping it all in the family’, my younger sister is now in her first year of law studies – she is already able to do better with alternative methods of study than I was.  I imagine that my sister, grandmother and I could have had some great legal debates over FaceTime or Skype, particularly about the merits of ADR using online platforms.   If the use of new study methods can change so rapidly, I’m very hopeful that ODR will expand too, lessening the impact on the courts, tribunals and regulatory bodies that are waning under the pressure of the workload.

Alice Cooney is a government solicitor specialising in litigation and dispute resolution. Alice has worked as a university sessional tutor for many years and as a trainer in prosecution techniques.  Alice has particular academic interests in advocacy, sentencing and the use of alternative dispute resolution by government agencies.

By Dr Benjamin Hayward

The very attraction of alternative dispute resolution is that it takes place outside of the courts.  Because of this, ADR processes aren’t bound by the strict procedures that apply in litigation.  ADR options are more flexible options.  But how flexible is too flexible?  Where is the line drawn?  And when it comes to flexibility in ADR, is it possible to have too much of a good thing?

Photo: Roger McLassus, Creative Commons

This blog post is about international commercial arbitration (‘ICA’).  As far as ADR goes, arbitration is a relatively formal option.  In ICA, commercial parties choose to submit their dispute to one or more arbitrators, for determination according to law – and forego access to the courts.

That ICA is a preferred means for resolving cross-border commercial disputes has been consistently shown by empirical studies carried out at the School of International Arbitration.  Of ICA’s many advantages – including its procedural neutrality, confidentiality, and the international enforceability of arbitral awards – flexibility is quite important.

Parties can tailor an arbitration’s procedure to their own requirements.  They can choose where their arbitration is held.  They can choose the language to be used.  They can choose whether their arbitrators require any particular qualifications or expertise – and can even choose the arbitrators themselves.  They can also agree on how their arbitration will be conducted.

In addition, parties can choose the law that the arbitrators will apply in resolving their dispute.  For example, parties might include a choice of law clause in their contract, alongside their arbitration agreement.  Most parties do – around 83%, according to data from the International Chamber of Commerce (‘ICC’).  Where they don’t, the task falls to the arbitrators.  Even if the parties don’t choose a governing law, arbitrators must still apply the law.  Here, the virtues of flexibility become a little more difficult to accept.

Arbitrators’ powers to identify the governing law are set out in the laws and rules governing the arbitration itself.  Typically, arbitrators are granted very wide discretion.

In research that I conducted for Conflict of Laws and Arbitral Discretion, I reviewed over 130 (current and superseded) arbitration laws and sets of arbitral rules.  The most common approach – appearing 60 times – grants arbitrators the power to simply apply whatever law they feel is ‘appropriate’ or ‘applicable’.  A good example is seen in the ICC Arbitration Rules, now in their 2017 edition (emphasis added):

Article 21: Applicable Rules of Law

(1)  The parties shall be free to agree upon the rules of law to be applied by the arbitral tribunal to the merits of the dispute.  In the absence of any such agreement, the arbitral tribunal shall apply the rules of law which it determines to be appropriate.

My research critiques the desirability of granting arbitrators these wide (and effectively unreviewable) discretions to identify the governing law.  While flexibility is undoubtedly a key advantage of arbitration, this kind of flexibility carries too far – flexibility in choosing between different laws, that may lead to different outcomes, effectively becomes flexibility in the end result.[1]

Without any kind of criteria required for the exercise of these discretions, how can they be justified when the outcome of the case is at stake?  For example, an arbitration may be initiated after three years, the statute of limitations in the claimant’s country might allow for four years, but the respondent’s country might only allow for two – selecting between these laws will determine if the claim can proceed, or whether it can’t even be argued at all.

This particular kind of flexibility may not be consistent with the interests of companies that are the ultimate users of ICA.  They may choose arbitration, as an ADR process, specifically because they want enhanced certainty regarding their substantive legal rights.[2]

Flexibility is a good thing in ADR, and it is a good thing in arbitration.  However, like all good things, it has its limits.  In Conflict of Laws and Arbitral Discretion, I argue that arbitrators should instead be required to apply a more specific rule to identify the governing law.

Though limiting flexibility, this may actually support the interests of arbitration’s users – improving their ability to foresee the law that they are ultimately bound by.  Uncertainty over the identity of that law leads to uncertainty over the parties’ rights and obligations.  Parties need to know how to perform their contracts; they need to know how to conduct their cases in an arbitration; and they need to be able to make sensible decisions about settlement.

All of these objectives would be furthered by taking just a little bit of flexibility out of arbitration.  When it comes to flexibility, and its impact upon the legal rights and obligations of parties, there might just be too much of a good thing.

[1] Simon Greenberg, ‘The Law Applicable to the Merits in International Arbitration’ (2004) 8 Vindobona Journal of International Commercial Law and Arbitration 315, 335.

[2] Gary Born, International Commercial Arbitration (Kluwer, 2^nd ed, 2014) 2616.

About Dr Benjamin Hayward

Dr Benjamin Hayward is a Senior Lecturer in the Department of Business Law and Taxation, at the Monash Business School, Monash University.  His research interests span international commercial arbitration, the international sale of goods, private international law, and Australian contract, commercial, sales, and consumer law.  Dr Hayward has a particular interest in how the applicable law is identified in international commercial arbitration, and the implications of this for arbitration as a dispute resolution mechanism.  He is the author of Conflict of Laws and Arbitral Discretion – The Closest Connection Test (Oxford University Press, 2017)

I have just started an empirical project on the use of ADR in resolving discrimination claims, which I mentioned in an earlier post on this blog, and the process of completing the research has reminded me of some of the challenges of conducting empirical research, particularly when the focus of the study is conciliation. In this post, I reflect on these challenges for researchers.

First it’s necessary to explain the context and use of ADR in resolving discrimination complaints in Australia. A person who has experienced discrimination is required to lodge their claim at either the Australian Human Rights Commission or their local equal opportunity agency before they can proceed to court (except in Victoria where this has been optional since 2011). The agency will assess the complaint and if it has substance and falls within its jurisdiction, it will attempt to resolve the complaint using conciliation facilitated by staff conciliators. Most are settled and both the process and outcome are confidential. Those that don’t settle are either withdrawn or proceed to hearing where they may undergo mediation as part of the court’s case management processes.

Conciliation plays a central role in addressing discrimination complaints in Australia yet very little is known about it. Since Margaret Thornton conducted the earliest empirical study of conciliation in 1989,[1] researchers have found it very difficult to get access to information about the conciliation processes. This is because most legislation requires the process to be confidential so that if the matter doesn’t settle, the parties can’t use what was said during conciliation in court proceedings.

If the matter does settle, though, the settlement agreement usually contains a confidentiality clause which can be worded broadly enough to prevent the parties from discussing the claim and the settlement outcome. This makes it next to impossible to interview parties about their experience of the conciliation process and its effectiveness, and it means information is not available, certainly not publicly, about what exactly the claims are settling for. Researchers can interview parties who proceed to court (if the researcher can get access to them) but their view of the process will be quite different from the people who settled their claim.

Photo: Paul McIllroy, Creative Commons

The most common method researchers have used to explore ADR in this area is to interview staff conciliators at equal opportunity institutions and lawyers. However, sourcing interview participants can present its own challenges. There is often not a big pool to draw from – the agencies usually have only a handful of staff conciliators, depending on the size of the State or Territory, who may then suffer from ‘research fatigue’ if they are always called upon. Some may not have enough experience in conducting conciliations. It can be difficult to identify lawyers with enough experience to comment on the process – lawyers don’t usually focus on discrimination law; it’s one part of a large practice area, usually employment law and even those on it may also be small. Barristers may not have any experience of the conciliation process because they will be briefed later.

In saying that, I think that there are many benefits of conducting empirical research on ADR. For one thing, it is a very interesting type of research to undertake. As a legal academic who is used to spending time in a library or at her computer reading legislation, cases and work by other academics, it is often a welcome relief to leave the office and speak to people!

Too often we can get caught up in the theory of law and how it should be operating, whereas empirical research reveals law ‘in action’ and shows its strengths and shortcomings. I have found this to be particularly important in this field where there are very few cases each year; the development of the law is taking place behind the conciliation doors. Empirical research is the only way of filling this gap in knowledge.

[1] Margaret Thornton, ‘Equivocations of Conciliation: The Resolution of Discrimination Complaints in Australia’ (1989) 52 The Modern Law Review 733.

This post draws upon a paper I presented with Dr Alysia Blackham at the Labour Law Research Network’s Conference at the University of Toronto, 25-27 June, 2017.

I have recently started a research project about Victoria’s anti-discrimination laws that will evaluate, amongst other things, the state’s model of optional ADR. This model has been operating since 2011 and is unique in the country. I thought this would be a good opportunity to reflect on how ADR is used in anti-discrimination law and some of the problems that have arisen from its prevalence.

A person who has experienced discrimination is required to lodge their claim at either the Australian Human Rights Commission or their local equal opportunity agency before they can proceed to court (except in Victoria but many complainants still approach the agency first anyway). The agency will assess the complaint and if it has substance and falls within its jurisdiction, it will attempt to resolve the complaint using conciliation facilitated by staff conciliators. My earlier research showed that the vast majority of discrimination claims are settled or withdraw prior to hearing; the courts hear very few discrimination claims each year.[1]

There are many reasons for the prevalence of ADR in this jurisdiction. One of the most attractive features of ADR is that it is less intimidating than a court proceeding, which demands, amongst other formalities, technical hearing and evidentiary procedures. ADR is well suited to people who would not pursue a claim if they had to participate in a public hearing. This is particularly important in anti-discrimination law because so many complainants are vulnerable or from marginalised communities. Court hearings are also costly whereas conciliation is provided by a statutory agency so it is cost-free unless parties choose to retain legal representation. ADR is quicker and more expeditious than litigation. Often the agencies are required to process complaints within a set timeframe. For example, one of the Australian Human Rights Commission’s performance targets is to finalise 80% of complaints within 12 months of receipt. In 2015-16 it exceeded this and finalized 98% within 12 months.[2] By contrast, litigation can take years to resolve. ADR is confidential so the parties can negotiate freely, knowing that what is said cannot be used subsequently if the matter goes to court. Finally, ADR is more flexible than litigation. The parties control the outcome, rather having an outcome imposed by a judge. There are no restrictions on the settlement the parties can agree to. Theoretically, the parties determine the terms of settlement.

There are, however, problems with using ADR to resolve discrimination claims. The first is also a problem in other areas of law – the power imbalance between the parties. The concern is that the ADR process may reinforce this to the complainant’s detriment. The Conciliator is expected to address any power imbalances but this may not always be possible, particularly if there are lawyers involved and they engage in aggressive, adversarial behaviour and argue about the merits of the claim, rather than allowing the parties to negotiate an appropriate resolution.

Second, there is no guarantee that ADR protects the public’s interest in eliminating discrimination or that it protects the complainant’s rights and interests. This is most problematic if ADR is used purely as a case management technique, and it often has the purpose when it is managed by a court – the goal is to avoid a hearing.

Finally, while confidentiality is a benefit of ADR, it is a significant limitation in two respects. Most settlement agreements contain a confidentiality clause which prevents the parties from discussing the claim but which many agencies interpret as preventing them from releasing information about the nature of the discrimination complaints they receive and how they are being resolved, even in a de-identified form. This has led to a significant gap in the information that is available about the ADR process and the outcomes negotiated, including for research purposes. This makes it difficult for potential complainants to ascertain how best to resolve their claim and it means courts are not aware of the creative ways in which discrimination could be addressed. The other problem with confidentiality is that masks the extent to which discrimination remains a problem in society and denies the law the opportunity to play an educative role. It then becomes easy for the community to think that discrimination is no longer a problem because it is all hidden.

In 2011, Victoria became the only Australian jurisdiction where it is optional for complainants to lodge their claim at the agency and undertake conciliation. Many complainants are still choosing this path, which shows the value of ADR in this area of law. I am certainly not suggesting abandoning ADR; for many complainants, participating in ADR, having what one lawyer I interviewed described as a “cathartic experience” can be more significant than the actual outcome obtained at settlement. Its limitations must be borne in mind and it is worth considering how to retain the benefits of ADR while mitigating its shortcomings.

[1] Dominique Allen, ‘Behind the Conciliation Doors Settling Discrimination Complaints in Victoria’ (2009) 18(3) Griffith Law Review 778.

[2] Australian Human Rights Commission, Annual Report 2015-2016, 27.