Thank you to Joanne Law for this post.

Joanne Law is a registered Family Dispute Resolution Practitioner, NMAS Accredited Mediator, Certified Family Group Conference Facilitator and New Ways for Families Coach.  She’s owner of Mediation Institute, established in 2013 to provide eLearning for the dispute resolution industry, with a human touch.

She is a professional trainer and co-founder of the not-for-profit Interact Support established to prevent family violence and abuse by providing accurate information and dispute resolution services for people who are slipping through the cracks in the family law system. 

Joanne records a podcast called Mediator Musings which you can find on iTunes and other podcast distributors and is curator for TEDxCasey in South East Melbourne.  

 The benefits of technology assisted training in dispute resolution

Using education technology is a rapidly growing approach to human learning. The dispute resolution education industry is not immune this trend and eLearning is now well established by pioneering organisations such as Mediation Institute. 

The traditional approach to mediation training gathers people into a room for a workshop with lecture style instruction on new material and role plays in an intensive training environment.

Studies that compare classroom instruction, eLearning and blended learning indicate that eLearning and especially blended learning are at least as good as, and when well-designed, outperform classroom instruction alone.   The major factors in eLearning that provide these benefits are realistic practice, spaced repetitions, contextualised meaningful scenarios and feedback.  

There have been various studies and meta studies such as Means and Colleagues 2013—Meta-Analysis which conclude “eLearning-only situations produced an equal amount of learning compared with classroom-only situations. Blended learning (a combination of both classroom and online learning) produced better results than classroom-only instruction.”

It makes sense to use of technology to support learning in terms of cost, accessibility and flexibility. Mediation Institute delivers courses either fully online or via blended learning where there is no adequate way to simulate through video meeting.  Our Family Group Conference Facilitation course is one where the skill to learn is facilitating a group meeting which takes place face to face.

It is important to design learning for eLearning and not just put offline material online.

What is online learning? 

Online learning or eLearning is a form of education whereby the primary delivery mechanism is via the internet (Bates 2008) It is more than an evolution of the distance learning correspondence course and when well-designed makes use of technology in a unique way.  The use of a website to deliver PDF content is still available and called online learning but that kind of approach gives eLearning a bad name, and promotes a bad student experiences and high drop out rates. 

E-learning includes the use of a learning management system to provide course content, the opportunity to blend audio and video material, conduct quiz’s and assessments and to engage in on line recorded and live classes with other students.

Three of the biggest advantages we see for students in online learning are individualised learning, better feedback delivery and helping our learners to be better prepared for the future in the industry which we firmly believe will have a much greater presence of Online Dispute Resolution.

Individualised Learning

The accessibility and flexibility of elearning means that learning can be individualised . In the case of skills learning activities can be reduced down to the minimum number of participants to participate in a role play.

We are eagerly awaiting the time when Virtual Reality and Artificial Intelligence is sufficiently advance and affordable to allow us to provide individualised simulation opportunities for students. Till then with three students and a mentor and two hours to spare they can participate in a role play from wherever they are, providing they have access to the internet.

We favour asynchronous learning where possible, which means is that students can start their studies with Mediation Institute when they are ready to start, move through the course at their own pace and book in to do their role plays when they are ready.

There is real time learning in webinars and role plays but the rest of the course is self-paced with discussions via a forum where they can read other students’ entries and contribute in their own time.   Semesters, course start dates and set assessment are for the convenience of educational institutions and provide no benefit for students, apart from a bit of extrinsic motivation.  This flexibility means that we are tracking at 95 – 100% completion rate, depending on the course.

Individual support starts when a new student joins a course as we can use web meeting technology to offer individualised student orientations.  In the session we hand over control of screen sharing to the student so they can navigate the course on their computer and the mentor can guide them remotely.  Students book in for sessions like this using an online booking calendar tool that lets them schedule a session and insert it into the mentor’s calendar.   

The other benefit of this individualised approach to learning is that the first role plays that they participate in are with students who have already participated in three role plays as a role player before their first role play as a mediator.  In workshops the first role plays are often short and very messy due to everyone struggling to understand the new information they have just been presented with and a lack of good examples to work from.  All of the role plays our students participate in are scheduled for two hours and provide the opportunity for tailored mentoring based on the needs of the student who is learning their new skills.

We use flipped learning which means that the theory learning takes place using online learning before interactive webinars, role play sessions or workshops. The students will have already completed some or all of the theory part of the course and ideally have had time to integrate what they have learnt as role players well before they attempt to use the skills as the facilitator.

This isn’t possible in a workshop as the time constraints of the schedule mean that the delivery pace is usually going to be too fast or too slow for the majority of the group.  People get pushed through to role playing being a mediator with an incomplete understanding of the knowledge they need and sometimes struggle to even remember let alone understand the content and effectively translate it into competent role plays for their final assessment.

Our learning approach means that students are competent by the time they reach their assessment 95% of the time. For the small number who are not we offer further coaching and the opportunity to be re-assessed.  

Better feedback delivery

Being a competent mediator is a unique skill building on interpersonal skills that most students already have. Learning how to mediate requires an adjustment in mindset and approach. Our experience is that students are often older learners who are very competent in roles where they give advice or advocate for clients.  They may be used to working with a certain type of client, for example victims of family violence and have to learn how to work with other people in a non-judgemental way in order to facilitate a fair process while still using judgement in order to ensure that the process is physically and emotionally safe. It is complex work.

Approximately one third of our students are legally trained, another third are counsellors, psychologist or social workers and the rest from a business or other background. 

They need to learn the mediation process, why the process developed and what each part of it does to help people to negotiate more effectively and how to be non-judgemental and empowering in their facilitation styles.

The benefit of doing our role plays using video mediation is that students can record their role plays and review them to help them to take in the feedback from their mentor. 

Unconscious bias, poor questioning or failing to use active listening effectively and other problems can be pointed out and then they can review their role play to observe themselves.

I still remember the cognitive resistance that I and other learners had when I learned mediation in the traditional way, there was no action replay available to us! Sometimes we thought the mentor must have been mistaken in their feedback or struggled to understand it,  impeding our learning.  

Better prepared for the future

Online mediation is a growing trend that will continue to grow as more and more “digital natives” take up roles in business and become clients for mediators. Communicating electronically using video meeting technology is already becoming common.  

I’ve already seen this trend in my own career as a dispute resolution professional and in the not-for-profit run, Interact Support.

Our policy is that if there is a family violence order in place, we don’t offer offline services. The options are video mediation, video shuttle mediation or mediator facilitated negotiation.   The majority of our clients either seek out or accept video mediation even if family violence isn’t a factor in their relationship breakdown. 

The use of legal tech is also going to be a major trend in our industry.

We train our CHC81115 – Graduate Diploma of Family Dispute Resolution students using Legal Tech software such as the Detection of Overall Risk Screening tool (DOORS) and FamilyProperty for their property FDR mediation simulations.  We believe that it is important to ensure that new mediators are comfortable using technology with clients.  Those who go on to do their fifty hours work placement with Interact Support are already prepared to work effectively with clients using video mediation and Family Property for their mediations and will be learning how to use MODRON for case management.

We’re currently developing a course on mediation case management which will be built around the MODRON online dispute resolution software.

The tool helps us to manage case management for our low income and community mediation programs. 

We are firmly in the information revolution now that knowledge can be captured, digitally transported and used later.  We are at an equivalent stage to the start of the industrial revolution when they were first able to capture energy and transport it for later use in the industrial revolution. 

My concern is that many mediators are caught up in the same sort of thinking that the Luddites used when trying to hold back the tide of industrialisation in the 19^th century.  Resisting advances in technology due to the belief that it will threaten jobs is almost a self-fulfilling prophesy while embracing and using the technology to amplify our human capability ensures we remain relevant as dispute resolution professionals.

Failing to do that will see a continued advance of the use of Artificial Intelligence (AI) to replace human decision making and facilitation of dispute resolution processes.

Alternative Dispute Resolution is increasingly being required to be used before litigation and Online Dispute Resolution (ODR) is providing low-cost and independent dispute resolution in a much more accessible way that the traditional approach with its mediation rooms and waiting lists. 

A Victorian Civil and Administrative (VCAT) ran a pilot in 2018 on ODR powered by MODRON to evaluate a hypothesis that “If VCAT introduces online dispute resolution then the Victorian community will experience improved access to justice.”  You can watch a brief overview here https://youtu.be/LTkT9Z7cn9c on the pilot.

Mediation effectiveness doesn’t depend on the way it is delivered, what matters more is that it is available when it is needed rather than allowing disputes to continue to escalate.

When it comes to learning effectiveness, it is not whether the learning is delivered in eLearning or classroom instruction, it is the quality of the training that makes the difference.

Poor quality training in either context is going to be poor quality training.

Technology enables better quality training by making it easier to be more individualised, more flexible and provide better feedback and more realistic simulations. Anything that moves away from presenting information via a lecture and expecting a group of people to learn at the same pace is a positive improvement. 

The research shows that it is essential to present to learners’ realistic scenarios for decision making, spaced repetitions over time to ensure retention, real world context through simulations and high quality feedback on their individual performance.

Online learning provides the opportunity to give learners these opportunities more effectively.

Further reading

Design for how people learn Julie Dirksen and the Serious eLearning Manifesto – https://elearningmanifesto.org/

Online delivery of VET qualifications: current use and outcomes Tabatha Griffin and Mandy Mihelic National Centre for Vocational Education Research. https://www.ncver.edu.au/research-and-statistics/publications/all-publications/online-delivery-of-vet-qualifications

• 

When it comes to court connected mediation (CCM) it is useful to make a differentiate between the process which takes place in the room and the process which takes place outside of the mediation room. Many CCM programs will arguably use NMAS as the foundation of what happens in the mediation room. However, they will all have different out of the room process. These out of the room process add to the context and environment that the inside the room process takes place and has the potential to have an impact. It is within in this frame of reference that I would like to introduce and discuss a relatively new model of mediation known as Fast Track Mediation and Hearing (FTMH) and focus the discussion on the out of room process and environment FTMH takes place in and how they may impact the mediation, parties and mediator.

Background

The FTMH program was developed in response to a recommendation in the Access to Justice Review. [LINK] The FTMH is a partnership between the Victorian Civil and Administrative Tribunal (VCAT) and the Dispute Settlement Centre of Victoria. The program started in September 2017 with a staged roll out over four years. As of March 2020, will be offered in eight locations across Victoria with the VCAT on King St in the CBD the main location.

Jurisdiction

The program will meditate goods and services disputes that have a value of between $500 and $10,000.

Objective

To resolve and if not finalise disputes as quickly as possible.

Process

Appropriate disputes are identified and staff of the FTMH program will contact the parties. An intake will take place over the phone where the process will be discussed, and parties will be provided with information to allow them to be best prepared for the day where the matter will be resolved or finalised.

On the day, parties will arrive at VCAT and will go through a one-hour mediation. The in the room process is a NMAS based facilitative model. If the mediation results in an agreement, then terms of settlement are drafted and signed and the VCAT file is updated accordingly. If there is no agreement, then the parties are taken directly to the tribunal and their matter is heard by a VCAT Member who will make a determination. From the parties’ perspective they will leave VCAT with either an agreement reached in mediation or a determination from a VCAT member.

Unique Features and Impact

The FTMH program has a number of unique features which impact the mediation, parties and mediator including:

Front loading of time and costs: given that the parties will be going into a hearing and have the matter determined on the same day as the unsuccessful mediation, means that any costs will have already been spent prior to the mediation and there will be no further costs incurred to take the matter from mediation to a hearing. The same is the case for time. There will be no further time delay from mediation to a hearing.

Costs orders: VCAT is a generally a no costs jurisdiction. Which means that one of the key risks in matters of low value does not exist. Parties are not incentivised or at least they are less incentivised to settle as they do not risk having to pay the other parties legal costs if the hearing does not go their way.

Final agreement opportunity: The mediation in FTMH is the final opportunity for parties to resolve the dispute. They can not use the mediation as a fact-finding exercise or opportunity to test or hear the other parties offers. As there is no opportunity to continue negotiating if the mediation is not successful as the matter goes directly to a hearing and will be determined

Conclusion

This an exciting program that really addresses a need for disputing parties. It gives them the opportunity to try to resolve the dispute themselves but at the same time ensures that the dispute will be finalised on the one day allowing greater access to justice for disputing Victorians.

Much of the attractiveness of resolving disputes in CCM is the saving of time and money and mitigating costs orders. FTMH removes the delay and added costs generally associated with non-resolution of CCM. This has a potential impact on the incentives for parties to settle. It also limits the BATNA, WATNA and reality testing tools mediator would otherwise have in their tool kit. In time, I hope to do a research project to see what the actual impact the unique features have on the outcome and party satisfaction.

It is great to see continued innovation in the CCM space and it will interesting to see how this program develops.

This post is based on the article ‘Readiness for Family and Online Dispute Resolution’ by Nussen Ainsworth, Lisa Zeleznikow and John Zeleznikow. The article is published in the International Journal of Online Dispute Resolution 2019 (6) 2.

Readiness and Ripeness are important concepts in mediation. Much has been said about these concepts in the context of international conflict resolution.

Accordingly to Zartman, the key to successful conflict resolution lies in the timing of efforts for resolution. Parties resolve their conflict only when they are ready to do so when alternative, usually unilateral, means of achieving a satisfactory result are blocked and the parties find themselves in an uncomfortable and costly predicament. At that point, they grab on to proposals that usually have been in the air for a long time and that only now appear attractive. He argues that if the (two) parties to a conflict (i) perceive they are in a hurting stalemate and (ii) perceive the possibility of a negotiated solution, then the conflict is ripe for resolution.

Pruitt states that that readiness has two components, which combine multiplicatively:

1. Motivation (that is, a goal) to end the conflict, which is fed by a sense that the conflict is unwinnable or poses unacceptable costs or risks and/or pressure from powerful third parties such as allies.
2. Optimism about the outcome of conciliation and negotiation.

Wiget claims that various factors seem to be important for the prospects of success:

1. The parties’ willingness to settle the dispute (or at least to negotiate in good faith towards a settlement) is perhaps the most important factor of successful mediation.
2. The amount in dispute – An analysis of data from the Canton of Zurich indicates that the settlement rate falls dramatically with an increasing amount at stake.
3. The parties’ ability to value the case – when neutral evaluation can be offered.

In family mediation, there is no corresponding notion of readiness or ripeness. The reason for this is that parties have little choice regarding when to negotiate as one party will commence the family dispute resolution (FDR) process, generally without reference to the other party. If the other party refuses to participate in the process, court proceedings may commence. It might be a good idea to wait for anger to subside prior to commencing the FDR process. This allows parents to focus on the children’s best interests rather than haggling about relationship issues.

While there are well-developed theories as to when to try to mediate international conflicts, there is little similar research regarding family disputes. Further, the time dimension in family mediation can mean that mediators do not have the flexibility to wait for the appropriate moment for dispute resolution. Some suggestions include:

1. It might not be wise to conduct the FDR immediately after partners separate as it can be useful for the parties to receive some counselling.
2. It is useful to have the parties separate financial and children’s issues and to sort out their finances before FDR commences.
3. The FDR process tends to be more successful once the initial anger has dissipated.
4. Most importantly, mediations tend to be more successful once power imbalances have been addressed. This process may involve shuttle mediation and should occur only if no safety issues are present.

I.W. Zartman, ‘Ripeness: The Hurting Stalemate and Beyond’, in P. Stern and D. Druckman (Eds.), International Conflict Resolution After the Cold War, Washington, DC, National Academy Press, 2000.

D.G. Pruitt, ‘Readiness Theory and the Northern Ireland Conflict’, American Behavioral Scientist, Vol. 50, No. 11, 2007, pp. 1520-1541.

L. Wiget, ‘Compulsory Mediation as a Prerequisite before Commencement of Court Proceedings- Useful Requirement to Save Resources or Waste of Time and Money?’, UNSW Law Research Paper 47, 2012.

This post is by Nussen Ainsworth and Svetlana German and was workshopped at the ADRRN Roundtable at Latrobe University on 9-10 December 2019

Achieving a fair agreement has been recognised as a central goal of mediation. However, there is no consensus amongst mediation scholars as to the meaning of a fair mediated agreement and how to best achieve it. Conceptually two broad categories of fairness in mediation can be proposed; procedural fairness relating to the process of mediation and substantive fairness relating to the outcome of the mediation. The National Mediator System in Australia expressly addresses fairness in Section 7 in “Procedural fairness and impartiality” stating: 

7.1 A mediator must conduct the mediation in a fair, equitable and impartial way, without favouritism or bias in act or omission. 

7.2 A mediator must identify and disclose any potential grounds of bias or conflict of interest before the mediation, or that emerge at any time during the process. 

7.3 A mediator must not mediate in cases involving a conflict of interest without the informed consent of the participants, and then only if, in the mediator’s view, the conflict would not impair his or her impartial conduct of the process. 

7.4 A mediator must support participants to reach agreements freely, voluntarily, without undue influence and on the basis of informed consent. 

7.5 A mediator must provide participants appropriate opportunities to speak to and be heard by one another in the mediation, and to articulate their respective interests, issues and underlying needs. 

7.6 A mediator must ensure, so far as practicable, that participants have had sufficient time and opportunity to access sources of advice or information necessary for their decision-making. 

7.7 A mediator must encourage and support negotiations that focus on the participants’ respective interests, issues and underlying needs and must encourage participants to assess any proposed agreements accordingly and with reference to their long-term viability. 

Whist the apparent focus is on procedural fairness, the NMAS directs mediators to encourage an assessment of the proposed agreements with reference to long-term viability. One reading of this may imply that substantive unfairness can undermine the viability of the agreement. In support of this interpretation, in NMAS 6.2 the mediator “must be alert to changing balances of power in mediation and manage the mediation accordingly”.  Internationally, some mediator standards direct that a mediator may indicate non-concurrence with a decision they find inherently unfair or may refuse to draft an agreement which “seems fundamentally unfair to one party”.  Where a mediator promotes settlement without regard to the legal rights of the parties the outcome of the mediation may be unjust.  In court connected mediation there is an additional argument that the outcomes should be measured by legal standards, as parties in court connected mediation should be entitled to expect “equivalency justice” which has both procedural and substantive components. This may be particularly difficult where parties are not represented or are uninformed about their legal rights.

A study of Court Connected Mediation Mediators demonstrates that mediators do engage with substantive law

Preliminary findings from this study provide insights into what is happening in  Court Connected Mediations including what role the mediator and law have in this process.  The data was collected by Nussen Ainsworth through interviews with 24 mediators, and the observation of 32 mediation across three CCM sites. The research focuses on the mediation process, the role of the mediator and the role of the law in CCM. A number of relevant findings included:

1. Law was integral to the mediators. Wearing a lawyer hat is very much ingrained in their identity, it is the prism that for the majority of their professional life saw and dealt with everything. The data suggest that for these mediators it is not a simple process to simply take off their legal practitioner hat. It appears that the opposite is true; the mediator relies on and leverages off their legal background when acting in the role of mediator. 
2. Substantive legal knowledge was the most common response mediators gave when asked what skills and knowledge they relied on in the mediation. Based on their responses, substantive legal knowledge can be from general ability to ‘understanding of what the dispute was about’  to ‘it was very important to have substantial knowledge of the VCAT advisory opinion on safety measure and I think that stood me in good stead knowing the current status of that opinion’
3. In CCM mediators are not reluctant to engage with the legal merits of the dispute, and some even take active steps to embrace such engagement.  
4. The CCM mediators are aware of the prevalence, and beneficial role law has in and on CCM. The vast majority of the mediators said their legal background affects how they conduct a mediation. 
5. The majority of the mediators said that mediators could evaluate or advise of the merits of the substantive dispute of the outcome of the dispute. However many mediators were firmly of the opposite view and said this sort of activity is never appropriate.  This remains a complex issue as there was a divergence of opinions between the mediators that said it is appropriate to evaluate and give advice as to what type and how much is appropriate. 

Further clarity in the guidelines is required

Although the data focused on the CCM disputes, the evidence suggests that the NAMS Standards are applied by mediators in varied way. The issue of mediators giving advice has long been discussed in the literature and something that is not encouraged and even frowned upon. However, this study demonstrates that this was not reflected in practice.  Some mediators do in fact evaluate the dispute from a legal perspective and concern themselves with both procedural and substantive justice. Whilst this may address some of the concerns raised in the literature it should be expressly addressed in the NAMS to ensure that there is a consistency of process and ensure that the obligations are clearly set out in relation to this critical aspect of mediation practice. 

Nussen Ainsworth is a Lecturer at the College of Law and Justice, Victoria University. Accredited specialist in mediation, Law Institute of Victoria. Editor in Chief of the Australasian Dispute Resolution Research Network WordPress site from February 2020.

Svetlana German (BSC/LLB (UNSW), LLM (Columbia University) is an academic at the University of Notre Dame, Sydney and barrister and accredited mediator at 10th Floor Selborne Wentworth Chambers.  Svetlana teaches in the areas of Dispute Resolution and Property Law and is currently undertaking a PhD at the University of Technology Sydney (UTS) where she holds theQuentin Bryce Law Doctoral Scholarship. Her doctoral research examines mediator perception of their obligation to remain neutral where one of the parties is unrepresented.

This post has adopted from a presentation given at the Civil Justice Forum 2018 hosted by RMIT by Nussen Ainsworth, Professor John Zeleznikow and Colin Rule.

 

(Photo: Colin Rule skyping from California USA into the ADR lecture in Melbourne Australia.)

Introduction

In 2017 the Alternative Dispute Resolution unit at the Victoria University Law School partnered with Tyler technologies (formally Modria) to integrate Online Dispute Resolution into the unit as a key form of assessment. The Tyler/Modria platform used in the pilot is the one being used in the USA and other countries for court/government/commercial purposes (https://www.tylertech.com/solutions-products/modria). It has not been designed for student assessment

All students were required to participate in an ODR simulation in groups of 3 and primarily provide legal advice re the content of the simulation together with a written report. This blog post will discuss the process of developing an ODR simulation and integrating it into the law degree curriculum.  We will also consider assessing student performance. This post will also outline some of the opportunities and challenges for teaching ODR that were identified in conducting the pilot and also provides ODR insights from law students taking the course.

ODR Development

Online Dispute Resolution (ODR) is a concept developed circa 1996. At that time the focus was upon the resolution of disputes that originated online.  The prevailing belief was that those whose disputes that originated on the internet would find little difficulty in attempting to resolve these disputes via the World Wide Web. For most of the past twenty years, ODR research has focused upon electronic commerce disputes. Only recently, has ODR focused upon non-financial disputes and disputes that do not originate online.

Access to Justice Review (VIC, 2016) Recommendation 5.2

The Access to Justice report was commissioned by the Victorian Government in October 2015. The aim of the review was to improve access to justice for Victorians. The review was released in October 2016 with 60 recommendations.

Recommendation 5.2 was for the development of an online system for the resolution for small civil claims at VCAT. The Government agreed to implement this recommendation in May 2017.  The review recommends the following three-step process for introducing ODR into the Victorian Civil Justice System.

Step 1. establish an Online Dispute Resolution Advisory Panel with terms of reference to oversee the introduction and evaluation of an online dispute resolution system for small civil claims in Victoria and make recommendations about the possible future expansion of online dispute resolution to other jurisdictions in Victoria;

Step 2. provide pilot funding, and, subject to evaluation, ongoing funding, for the development and the implementation of a new online system for the resolution of small civil claims in Victoria; and

Step 3. introduce legislation to facilitate the use of the new online system for the resolution of small civil claims.

The British Columbia Civil Resolution Tribunal (https://civilresolutionbc.ca/)  acts in a similar manner.

ODR, Artificial Intelligence And Self Represented Litigants

Zeleznikow has examined the issue as to whether potential litigants can receive useful support from intelligent online dispute resolutions[1]. He claimed that such systems can be particularly useful for self-represented litigants. The SRLs benefit not only from obtaining useful advice, but also becoming better educated about the procedures and potential outcomes for issues in dispute. He noted that most ODR systems provide exactly one of either BATNA advice, support for trade-offs and facilitated communication. A truly useful Online Dispute Resolution system should be a hybrid of all three approaches. Further, Online Dispute Resolution should not be fully automated. As well as providing opportunities for communication, such systems should advise users of the relevant law, potential solutions and relevant trade-offs. These tools might be videos, relevant papers and books, past cases and links to useful websites. They can also be very useful in triaging disputes (e.g. immediately sending a case of domestic violence to court rather than allowing the parties to prolong physically acrimonious disputes) and act as a source of information collection (there is no need to expend a court official’s time recording demographic data).

The ADR Unit At VU

The ADR unit at VU College of Law and Justice was first delivered in 2015. The unit is a popular elective with approximately 120-140 students enrolled each year. Through a Technology Enhanced Learning Grant, a series of videos were developed which followed a case through mediation and arbitration. The videos are posted on YouTube (https://youtu.be/J2KLXAKfIL8). The unit received a blended learning grant in 2017. This grant was used to develop the ODR simulation component for the unit.

Unit Assessments

The unit has four assessments. Assessments 2-4 are group based.

1. Online multiple choice questions
2. ODR simulation and report
3. Letter of advice post the ADR process with the production of either a mediation deed of settlement or an arbitration award
4. Group presentation

ODR Added Benefits for Students

ODR has primarily been seen as the provision of ADR via technology. ODR integration into the ADR curriculum has the potential to offer many benefits for students. The ODR component requires students to develop their technological literacy. It also offers greater time and access flexibility for students.

Student Insights from the Integration of ODR in the ADR Unit

The following insights were adapted from observations, class discussion and student submissions in the ADR unit.

The Benefits of ODR

There are a number of benefits offered by the use of ODR where the parties use a text-based platform as compared to traditional mediation.

The benefits include:

• Everything is typed so there is no need to repeat what was said or take notes
• It can be more cost-effective; there is no requirement for travel, room hire or paper.
• Parties participate remotely which can address safety concerns and allow for a more comfortable environment.
• Less confrontational or emotional
• Keeps parties more focused on the issues

Limitation of ODR

The text-based ODR process comes with a number of limitations as compared to the traditional mediation process:

• The process is impersonal
• It can be hard for the parties to express empathy
• There is a greater likelihood of the parties becoming keyboard warriors
• Lack of non-verbal communication
• The parties require competency in digital literacy e.g. typing speed
• Asynchronous text communication can have delays between messages
• There can technical difficulties with both the hardware and software
• Parties can easily type messages in the wrong room
• The mediator has less control
• There needs to be confidentiality compliance with the typed record
• The process creates added complexity for non-English speakers

How can ODR be improved

A number of the limitation and issues with ODR can be addressed through:

• Intake session with the mediator to build rapport
• Introduction to the ODR video
• An ODR guide for parties that covers:
  • Etiquette
  • Online communication
  • Process
• Use of video chat in mediation
• Able to view joint and private rooms simultaneously
• Alerts for new messages
• ‘typing…’ icon when the other party is typing
• Indicator for when a message is sent, delivered and read
• Mobile device compatibility
• Mediator termination option

Opportunities and challenges for ODR in law school curriculum

Following the introduction of the ODR simulation integration pilot in a law school ADR unit, it is clear that this is an exciting area which has a number of opportunities and challenges to consider as it is further developed and delivered.

• Group work based assessment has a number of challenges and this is no different in an ODR context.
• ODR is an innovative and new area to which students are being exposed. This requires expectations to be managed.
• For the pilot, we used one fact scenario for all the groups. There is an opportunity for students to develop their own fact scenario for their group to use in the ODR simulation.
• The ODR simulation will be limited by the platform being used. The platform used in the pilot was not designed for student assessment. There was no ability to export the content of the simulation for assessment submission. For the pilot, students were required to copy the text from the platform and paste it into a word document which was then submitted. This a clunky and inefficient process.

Conclusion

With the exponential increasing use of technology in education, government, commerce and courts there is an urgent need for students to be aware of new technological trends.  Whilst the use of ODR in legal practice is still very limited, there is wide acceptance that this will no longer be the case in the coming decade.  Hence, as legal education leaders, we need to train our students in the potential and use of ODR.

But as well as training legal students for future practice, the course has benefits for teaching students about ADR.  It allows students to watch and most importantly engage in ADR simulations.  This opportunity is lost in the traditional teaching of ADR.

[1] Zeleznikow, J., 2017. Can Artificial Intelligence and Online Dispute Resolution enhance efficiency and effectiveness in Courts. International Journal for Court Administration, 8(2).

 

 This post has been contributed by Associate Professor Jill Howieson, University of Western Australia. 

Introduction

This article asks and answers some questions about the new UWA Mediation Clinic and the theory behind the practice, education, and research that the Clinic conducts.  Jill Howieson is the Director of the Mediation Clinic and Lisha van Reyk is the Research Co-ordinator and Manager.

What are we doing in mediation at the UWA Law School?

At UWA Law School, and in the newly opened UWA Mediation Clinic, we teach, practice and research in a mentalizing-based approach to mediation (MBT-M).  The pioneers of MBT, Professors Peter Fonagy and Anthony Bateman from University College London are working with us in this endeavour and will be running the inaugural MBT-M training course at UWA in July – you can see the flyer attached.

Can you tell me a little bit more about MBT-M?

What we have noticed is that there is a wide variety of ways that mediation is practised and taught around the world and a wide roster of activities that mediators undertake.  However, there is a lack of an underpinning theory of interpersonal process to mediation.  We believe that MBT (Mentalization-based Treatment) is an underpinning theory that could provide mediators with a framework through which to understand the behaviour of parties during a mediation process.

MBT is an internationally recognised, evidence-based approach to working with people experiencing substantial conflict, distress, and relationship breakdown. It was originally developed to treat individuals experiencing personality disorder and has demonstrated subsequent efficacy in the treatment of a range of psychological and relational disturbances.  There are a range of mentalization-based treatments, including for children (MBT-C), families (MBT-F) and adolescents (MBT-A), and for chaotic multi-problem youth, AMBIT (adolescent mentalization-based integrative treatment).  These models have been developed mainly by groups associated with the Anna Freud National Centre for Children and Families, of which Professor Peter Fonagy is the CEO, and the Duchess of Cambridge is the Patron.

In MBT-M with its focus on mentalizing, the mediator can utilise interventions that facilitate and deepen the communication process. In contrast, counterproductive party behaviour can be halted and transformed by specific, indicated interventions by the mediator.  We anticipate that this can bring greater nuance and rigour to the implementation of mediation models, management of inter-party conflict, and interpretation of mediation success.

What is Mentalizing?

The mentalizing concept refers to the capacity to understand one’s own and other’s behaviour based on intentional mental states, such as feelings, thoughts, beliefs, and desires.  Intentional means it means something (Allen, Fonagy & Bateman, 2008).  It is the capacity to consider what one’s own mental states and those of others might mean and how this might influence behaviour.

Mentalizing comes from our understanding of the neuroscience and the differences between the Mentalizing System or theory of mind (ToM) system in the brain and the Mirror Neuron System.  The Mirror Neuron system is a coherent large-scale network which supports automatic action understanding and imitation.  The Mentalizing System is a smaller, less developed system but concerns regions that are all activated when we infer intentions referred to mental states.

Mentalizing is one aspect of social cognition sets us apart from other primates. It underpins our ability to deceive, cooperate and empathise, and to read others’ body language. It also enables us to accurately anticipate other people’s behaviour, almost as if we had read their minds. In a negotiation or mediation context, the research is showing that the mentalizing system needs to be activated for people to negotiate well and to make meaningful decisions.

It sounds great.  What happens when our mentalizing system isn’t activated?

When we are in conflict, or highly emotionally aroused (for whatever reasons, i.e. relationship breakdown, stress, lawyers’ behaviour, intimidation of the court etc) our mentalizing system is deactivated.  Mentalizing goes ‘offline’: our mentalizing capacity is reduced and this means that we are unable to act in a way that makes sense to ourselves and others.  It impairs our ability to make good decisions, vision realistic alternative futures or be flexible about our options and better able to consider alternative ways of resolving disputes.   This is where MBT comes in.  MBT can assist people to re-engage their mentalizing capacity or repair impaired mentalizing.  It is an integrated psychotherapeutic treatment that derives from philosophy, psychology, psychiatry, and attachment theory and utilises what is referred to as the Mentalizing Stance.

The Mentalizing Stance…?

When our mentalizing goes offline, we become alienated from understanding of self and others, rigid in our behaviours (work in automatic mode) and get stuck in our positions (as opposed to interests).  To restore and maintain our mentalizing function, we need to be encouraged to attend to the mental states in ourselves, and the mental states of others.  Practitioners can assist in this restoration by taking what is referred to as a ‘mentalizing stance’.

The mentalizing stance aims to foster a spirit of inquiry into and clarification of the person’s mental states to bring mentalizing online.  The mentalizing stance involves using the inquiry mode when asking about another’s experience and exploring the full detail of the person’s unique situation and experience, rather than assuming it follows a general pattern.  It is a non-judgmental, non-expert and entails having patience and taking the time to identify differences in perspectives and maintaining curiousity about the person’s experience.

OK, sounds relatively simple, is there more to it than this?

Yes, as well as taking a mentalizing stance, mediators need to be alert to non-mentalizing.  Of most importance is recognising psychic equivalence, pretend mode, and teleological understanding, all of which suggest that mentalizing has been lost or is impaired. Some examples that you might hear in negotiation and mediation might include: Physic equivalence (concrete mode), “There is absolutely no way that that offer is genuine.  She just wants to control me.  She does this to me all the time.” Pseudo mentalizing (pretend mode), “Oh yeah, I understand where they are coming from.  I understand that their excessive need to be right and fear of being wrong is going to lead them into making them feel insecure and that they might need to compensate for that by creating an offer that looks attractive.  I get it.” Or Teleological, “They arrived late for this mediation today because they don’t want to settle.”

At the UWA mediation clinic we will be investigating these non-mentalizing modes of behaviour and how mediators might intervene in ways that identify and shift non-mentalizing behaviour

So, back to the UWA Mediation Clinic… linking research, teaching and practice

At UWA, we teach the NMAS Facilitative Mediation course as underpinned by mentalizing theory. In this, would-be-mediators learn the basic skills involved in the facilitative model and the core principles of MBT with a focus on the mentalizing stance. As such, participants build a working model of mediation and, within this, competency both in recognising mentalizing in self/other and maintaining a curious stance. Early this year we opened the UWA Mediation Clinic to begin researching MBT-M and to develop a rigorous evidence-based approach to mediation.  In 2019, we will be introducing Clinical Legal Education for law students who will work with pro-bono mediators and act as mediation advocates for ‘real-life’ clients.  The UWA Mediation Clinic aims to provides excellence in the practice, research, and teaching of mediation.  You can read more here:  http://www.mediation.uwa.edu.au

And finally, the MBT-M training in July 2018

The MBT-M training course has been developed with Professors Bateman and Fonagy.  It aims to increase the capacity of those already working in mediation settings to understand and effectively intervene when parties are in conflict.   Attendees will learn to formulate conflict from a mentalizing perspective and to use this knowledge to engage the mentalizing capacities necessary for parties to communicate wisely. This training is relevant for those who work with cases that involve relationship breakdown (e.g., family law, workplace, and commercial disputes, etc.).  The training is open to all mediators.  You can Register at: http://www.trybooking.com/359372

 This post has been contributed by Jo Ewen[*] final year student at the College of Law and Justice, Victoria University.

 

My name is Jo Ewen and I am a final year student at Victoria University College of Law and Justice. I was fortunate enough to have been granted observer status at the United Nations and attended United Nations international trade law meetings in both UN Headquarters in New York and in Vienna, Austria. This is post is about that experience.

Changes in dispute settlement regimes across the globe over the previous half century were largely due to the implementation of the New York Convention ratified in 1958.[1]  Whether or not the latest convention on The Enforcement of International Commercial Settlement Agreements resulting from mediation settlement agreements which was finalised in February 2018 will have a similar impact will remain a question for quite some time.

As an observer I saw the United Nations Commission for International Trade Law (UNCITRAL) and Working Group II complete the draft convention; “United Nations Convention on International Settlement Agreements [resulting from mediation]” and a draft amended Model Law on international settlement agreements resulting from mediation in New York; “UNCITRAL Model Law on International Commercial Mediation (2002), With Amendments as adopted in 201*” and “UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements.”

UNCITRAL was established by the UN General Assembly in 1966 as the core legal body of its member nations. UNCITRAL Working Group II performs work to further the harmonization and modernization of trade laws of its members by preparing and promoting its work.   In fulfilling its functions, UNCITRAL coordinates with other law reform bodies to produce legislative instruments as texts with various foci such ason contracts for the sale of goods, transport, dispute resolution, procurement, infrastructure, development, international payments, electronic commerce and insolvency. International trade law is largely a consensus-based system that does not have an overarching sovereign to regulate the system and enforce penalties. There is currently a total of 157 country signatories.

Working Group II focuses on dispute settlement specifically, International arbitration-mediation/conciliation-settlement agreements.  At the recent New York[2] meeting and at the previous Working Group II meeting in Vienna[3] last October, I observed discussion and consultation by the delegates from over fifty nations and observers from national and international legal bodies in support of the adoption and use of UNCITRAL texts being drafted and considered. This forms part of all UNCITRAL’s work as a subsidiary of the General Assembly in modernising commercial law across international trade law frameworks.

Over five days of deliberations in New York, Working Group II discussions provided an opportunity for delegates to forward their own ideas thereby inviting the group for an inclusive compromise discussion.  The elected chair guided discussions using highly skilled diplomacy. The end product is confirmed to be finalised in July 2018.

Some discussions were on the laws governing conciliation; Important issues pertaining to the mediator/conciliator’s signature; and the necessity to work on the issue of defences.  Compromise proposals were established upon agreement to change the current perception of mediation and create alternatives to practices currently employed. Of particular note was the significant resistance found by the group during “Article 5- Grounds for refusing to grant relief’ deliberations.

There were commendations shared among the group for each other’s constructive input and stellar unseen work from the Secretariat. The week of robust debate resulted in a workable document with wide applicability.

During concluding talks, there was an expression of hope for the continuation of an open debate in the tradition of the commission and also hope expressed for continued consensus on its work on mediation mirroring the phase of international commercial arbitration.  Other proposals were made with respect to expedited arbitration and adjudication work affecting investment dispute settlement as well as proposals to look into the scope of impact under the NYC and compare it to now.

Attending this meeting has fuelled my consideration of encountered difficulties for Australian exporters.  The lingering issue is enforcement; an arbitration award or settlement agreement; What is more, are matters of compliance with signatory obligations for UNCITRAL members in this region. Whether or not doing business in these countries is done at a risk or if in doing so, at what thresholds does it become necessary for increased charged premiums to offset it? Following on, having attended these meetings as an Australian law student I’m also enthusiastic about conducting research into whether or not enforcement is a significant problem for many of Australia’s trade partners in the Asia Pacific; Particularly the Indian sub-continent, China, Vietnam, and elsewhere in South East Asia.

 

 

 

 

[*] Victoria University Honours Law student in the final academic year with an interest in the specialist area of dispute settlement. Previously completed Bachelor of Science degree at VU and worked as a technical data specialist with the Australian Department of Defence working with major defence aerospace contractors throughout Australia. In the course of my law studies, I travelled to six countries, including when studying International Business Law in Germany in 2017. In recent months, having been granted Observer status and the United Nations; Attended United Nations international trade law meetings in both UN Headquarters in New York and in Vienna, Austria.

[1] 1958 Convention on the Recognition & Enforcement of Foreign Arbitral Awards, commonly referred to as the New York Convention.

[2] 68th Session, 4-9 February 2018, New York

^[3] 67th session, 2-6 October 2017, Vienna