Legal education in Australia increasingly acknowledges the need to teach about technology and law schools have included elective and core curriculum dealing with such issues (Judy Gutman and M Riddle, ‘ADR in Legal Education: Learning by Doing’ (2012) 23 Australasian Dispute Resolution Journal194; Kathy Douglas, Josephine Lang and Meg Colasante, ‘The Challenges of Blended Learning Using a Media Annotation Tool’ (2014) 11(2) Journal of University Teaching and Learning Practice 1, 3-4). There are now subjects that provide the opportunity to build computer apps (applications) to solve legal problems and core courses include information on issues such as smart contracts and blockchain. For example, FineFixer, an application devised to help the public implement strategies to deal with fines, was initially developed by RMIT University students in an elective course and was later made available through the Moonee Valley Legal Service, funded by a grant from the Victoria Law Foundation.  Higher education is evolving with faculty increasingly engaged ‘with options and technologies, including collaboration tools, video and media’ where video, as a visualisation media, taps into ‘the brain’s inherent ability to rapidly process visual information, identify patterns, and sense order in complex situations.’ (New Media Consortium and EDUCAUSE, NMC Horizon Report: 2018 Higher Education Edition (2018) 11 March 2019, 35)  ADR teaching also needs to adopt the latest technology in teaching about areas such as negotiation, mediation, arbitration and collaborative law.

Teachers of mediation have often relied on videos to demonstrate mediation skills to prepare for role-plays. However, merely watching a video may not be as effective as also engaging with peers. The watching of video, combined with a subsequent online discussion of mediation skills, can enhance student learning as students become active rather than passive learners. After watching videos and discussing the legal skills online, students can later be asked to demonstrate these skills in role plays. Our article in the latest edition of the Australasian Dispute Resolution Journal discusses an example of the use of video and online discussion to scaffold learning about mediation (Kathy Douglas, Tina Popa and Christina Platz, ‘Teaching Mediation Using Video and Peer Discussion: An Engaged Video Learning Model’ (2019) 29(3) Australasian Dispute Resolution Journal 182). Students watch a video of a mediation, discuss the mediator interventions online and then undertake role plays at an intensive weekend seminar. The scaffolding of student learning through watching the video and subsequent online discussion prepares students to demonstrate the mediation skills. The article concludes with a model of ADR learning with video that serves as a useful guide to implementing active video learning activities. This model can be used to make further videos such as specific contexts of mediation that is family, workplace or community mediations. The model could be used to develop videos on other ADR options such as conciliation, arbitration and collaborative law. We hope this model might assist the ADR community to use technology effectively in their teaching of ADR skills and theory.

[pixabay, free image, mohamed_hassan]

Susan Armstrong recently posted about the value of research in family dispute resolution. She pointed out the benefits of research led practice.  I also advocate this approach but am researching the context of conflict in strata title (multi-owned housing) and the best ways to deal with disputes where parties live in close proximity and share assets. My research focusses particularly on the development growth in apartment towers, medium density townhouses and master planned estates.  Master planned estates often include shared assets such as a country club with pool and tennis courts.  These developments are growing in inner suburbs  in infill sites and in the outer suburbs where there may be large amounts of detached housing surrounded by medium density townhouses.

Conflict arising in apartment buildings, medium-density housing and master planned estates is an important issue as strata title developments become more prevalent in Australia. The research is also important as conflict can impact negatively on the experience of residents in these strata developments. In Victoria, the Owners Corporations Act 2006 (Vic) (‘OC Act’) provides for a dispute resolution scheme for conflicts arising in strata developments. A recent co-written article will appear soon in the Adelaide Law Review describing our research into dispute resolution under the OC Act, and in particular into the effectiveness of the model rules for dispute resolution provided in the associated regulations. The research, which was conducted in Victoria in 2011, gathered data from a range of key stakeholders in owners corporations, including 34 strata managers of owners corporations. This article reports on the range of conflicts experienced by the strata managers who participated in the study. Analysis of the data provided by the strata managers shows that difficulties with conflict and the model rules for dispute resolution under the OC Act were most evident in small and large developments. The participants most satisfied with the model rules were managers in medium-sized owners corporations. Whilst a majority of managers used the model rules, over a third used their own informal rules. These findings lead us to argue that there is a need for differentiated rules for dispute resolution that are dependent upon the size of the development. Additionally, we suggest that further research is needed into the informal rules applied by a significant proportion of managers to ascertain their effectiveness and to provide owners corporations with added choice in dispute resolution.

Given a recent review into the OC Act in Victoria we hope our research will asset in reform of the legislation. I am presenting on an associated issue at the Mediation Conference in September where I will explore what further research in this area might look like to engage OC residents in better dispute resolution design.

Historically most Australians have lived in detached homes. However, particularly in Melbourne and Sydney, this is changing rapidly. Australians now also live in apartments, medium density housing and master planned estates.  This increase in higher density living mirrors trends worldwide, where apartment-style developments are common in countries that traditionally favoured detached housing. The greatest increase in apartments is occurring in high rise towers and many residents are finding vertical living poses some challenges, including significant levels of conflict. Apartments require joint infrastructure which may simply be lifts, foyers and stairwells or may also include joint lifestyle assets, such as swimming pools and gyms. In Victoria and New South Wales the legal entity holding the joint assets is known as an owners corporation. Individuals purchase their own apartment and have an interest in shared assets. Legislative governance arrangements require a committee of management to manage the shared assets. Generally, a property manager (owners corporation manager) is employed to manage the legal entity and assets. Conflict may arise over the management and use of shared assets and also the greater density of living including disputes over noise, pets and renters. Arguably, there is a lack of appropriate education about conflict engagement for committees and the property managers who assist in the management of owners corporations. Recently the Victorian government has announced a review of owners corporation legislation.  As part of this the government is considering requiring more of property mangers in terms of education and this change may include compulsory training in conflict resolution.  This may be the first step to better equipping property managers to engage with conflict.  It may also help mangers to develop strategies for conflict prevention due to the building of community and the skilling of committees and residents in this area. With the widespread growth in apartments we need to ensure that conflict is not allowed to fester in vertical communities.  The answer is to train property managers in skilled conflict so they can deal with disputes in a timely fashion.  This will be positively impact on the many Australians who will live in apartments and other higher density developments.

2016 is promising to be an important year for presenting about research into ADR as there are a number of upcoming conferences (see previous posts for details).  First there is the upcoming conference at the ACIJ at Monash University’s law premises in the city of Melbourne.  This Conference on the Civil Justice system will address, along with a range of civil issues, the place of ADR in our legal system.  Second, there is the National Mediation Conference in September at the Gold Coast.  This biannual event is always the highlight of research for me as there is a mix of practitioners, industry bodies and researchers.  I have fond memories of meeting with people from industry and later collaborating on projects sprung from conversations held at this Conference.

Later in the year is our own ADR Research Roundtable which will be held in December in Tasmania at UTAS.  It promises to be another exciting venue for cutting edge research.  The Roundtable in Sydney in 2015, held at UNSW, was a big success.

My paper at the conference dealt with conflict in planning.  It was a work in progress paper that I received valuable feedback about.  I will give you a short description of the paper and then outline the feedback to highlight the value of presenting research in ADR.  As you are probably aware planners routinely deal with issues involving conflict. Planners working in development approval roles in particular are regularly engaged in situations involving people who may be upset, angry and at times aggressive. Individuals involved in planning disputes may represent powerful vested interests or hold passionate personal views, heightening emotions for a whole range of reasons.

My joint paper with Professor Robin Goodman reported on recent interviews conducted with 17 planners employed in four differing local governments in Melbourne, Australia. In these semi-structured interviews planners discussed their experience with conflicts, the adequacy of their training in areas of conflict resolution and reflected on their preparation for some of the most challenging aspects of their profession. The results confirmed the need for greater emphasis to be placed on teaching a range of personal and professional behaviours relating to conflict in planning education.

The interesting feedback that we received at the Sydney Roundtable queried whether we had realised that many of the issues relating to planners and conflict were likely caused by poor dispute resolution design.  If the design was more innovative, allowing for better “voicing” of community concerns, it may be that planners would not bear the brunt of objectors and developers anger.  This feedback has led us to a new fork in our research, exploring the development of innovative dispute resolution design in planning conflicts.  We hope to present our new paper at the National Mediation Conference.  This is one example of the value of presenting your research because the peer feedback can give that “aha” moment beloved of researchers!

Consider getting involved in presenting…..it can have some great benefits!

For all those interested in presenting about their research into Mediation!!!!

To all researchers, Academics and Research Higher Degree students in Arts, Humanities, Law, Justice, Judicial Science, Social Science, Psychology (clinical, child psychology, counselling) and other DR related fields.

The National Mediation Conference Queensland Board encourages you to present and share your work with like-minded researchers at the bi-annual National Mediation Conference 2016 which will be held from Monday, 12 – Wednesday, 14 September 2016 at the Gold Coast Convention and Exhibition Centre on the Gold Coast, Queensland. Pre-conference workshops will be held on Sunday 11^th September 2016. See www.mediationconference.com.au

A specific Dispute Resolution Research Forum will be held post-conference on Thursday, 15 September 2016 at Bond University. Attendance to the DR Research Forum is included in the cost of the Conference.

The conference theme is ‘Thought, Innovation and Creativity: The Next Decade’

This is a unique opportunity to exchange ideas, results, evaluations, proposals for future research and to discuss thought, innovation and creativity in DR research area for the next decade!

Abstracts are due 15 March 2016. As in past conferences, presenters at the Research Day will not receive a speaker’s fee and will have to register for the day if they are not attending the whole conference.

Early Career Researchers along with more established researchers are encouraged to participate in presenting on their latest research.

Delegates include academics, policy makers, and practitioners across the DR spectrum, authors, and participants from the private and public sectors, agencies and organisations.

Presentations will be disseminated via the Conference website and become freely available. Additionally each presenter will be encouraged to publish their material in recognised journals such as the Australasian Dispute Resolution Journal (ADRJ), Conflict Resolution Quarterly, Australian Journal of Family Law, Family Law Review and the Arbitrator & Mediator, Resolution Institute Journal, formally the IAMA Australia Journal.

Please forward this invitation to your networks and others who may be interested to attend the Conference and or present at the Research Forum.

Opportunity to explore, time to surprise and impress

One of the original aims of the modern mediation movement was to give parties “voice” in proceedings that related to litigation.  In court parties have very little opportunity to directly speak, although they may give evidence.  In mediation, in the facilitative model and many other models such as the transformative model, there is the opportunity for parties to tell the story of their dispute.  How easily though in court connected mediation can this opportunity be curtailed through the presence of lawyers who may not wish a client to speak.  Lawyers can be all too aware of the possibility that their client may divulge information that may “harm” their argument and could impact on any later litigation.  But this opportunity for voice, a key notion in the idea of procedural justice, is one of the key reasons that mediation can be a very different process than court.  The opportunity to tell a story can impact on settlement and give rein to emotional dialogue that may lead to more satisfaction with the process of mediation.  There are other aspects of procedural justice that are also important to mediation i.e. respectful treatment; evenhanded or “neutral” treatment (acknowledging that neutrality is a contested term); trust and fairness.  All of these aspects of procedural justice have an impact on the process of mediation.  The theory can be used as a framework for improved party satisfaction; mediator practice and as a rationale for the wider use of mediation in our court system.  Procedural Justice needs to be researched in Australia and internationally to highlight its benefits to mediation.

i am in Bali, enjoying the sun and the mountains, temples and beaches. I am struck by the calm and graceful people and their approach to life and culture

It seems a world away from the adversarial culture of many Australian

the question is how much does culture play in dispute resolution and is there a way to change the traditional adversarial culture of many Western nations?

Many mediators have their own strategies in conflict resolution and these may depend on their personality, style and personal mediator philosophy.  How mediators practice can include known communication skills, such as open questions, summarizing and reframing.    Increasingly researchers are interested in the many other mediator strategies such as use of humour, improvisation and intuition.  Such mediation strategies can be controversial as they don’t usually appear in mediation standards or training programs.  However, these kinds of strategies may be just as effective as the traditional communication interventions. For example, whether a mediator can use humour to lighten the mood, improve rapport and open participants to new ideas. Improvisation can be used by mediator to move away from the set steps of mediation in order to be flexible and fluid to meet parties’ needs. Intuition operates in a mediation to assist the mediator to make strategic choices informed by years of experiences.  All of these kinds of strategies could be said to be part of “artistry” in mediation practice… where some mediators show a more sophisticated approach to how they mediate.
As research in the mediation field matures I think researchers will increasingly be interested in unpacking how mediators with experience practice to inform both mediator education and to share skills in our community of practice.

There is now a groundswell call for increased adoption of ADR in legal education to develop non-adversarial practice in law students.

For example, in 2014 the Productivity Commission has recommended the inclusion of ADR in legal education (see chapter 7).

Whilst acknowledging that legal education must meet the needs of both students and a diverse array of stakeholders the productivity commission has also recognised the need for improved provision of ADR education in a law degree.The future of legal education arguably requires that ADR teachers are recognised and valued for the unique contribution that they provide to legal education.  ADR teachers provide a combination of theory and practice in dispute resolution that enriches legal pedagogy.

Many universities now include ADR as a mandatory course.  We all need to support the mandatory inclusion of ADR in legal education to ensure the development of non-adversarial practice in law

As we start 2015 (with bush fires and floods in Australia) I would like to post about a topic that I think is of real importance to mediation. We all know that ADR and in particular mediation, is commonplace in our justice system, mainly due to the positive affect mediation has on lowering matters reaching court. What I believe gets less attention is how mediation is practised. Too readily the rhetoric of mediation is accepted by courts and policy makers without a critical examination of how parties are treated in mediation. The experience of mediation for parties is just as crucial as the lowering of the matters listed for hearing in courts. One issue of importance is whether parties have the opportunity to express emotion in mediation. How do mediator’s respond to emotion? Do they see emotion as having a place in mediation? What interventions do they practice to engage with emotion?

As part of a research project we asked 16 mediators about emotion and found many open to engaging with emotion in mediation, but having a rather unsophisticated approach to the theory and practice of emotion in this context. Well meaning but largely uninformed they did have a number of strategies that they used including using the ground rules, private sessions and summarising and rephrasing. If you are interested check out this article for more details of our research:

Douglas K and Coburn C, ‘Attitude and Response to Emotion in Dispute Resolution: The Experience of Mediators’ (2014) 16 Flinders Law Journal 111

I’d be interested to hear other peoples’ views of the place of emotion in mediation.