Lola Akin Ojelabi

(Adapted from Lola Akin Ojelabi, “Managing Societal Conflicts: Identity, Social Inclusion and Values” (2020) 30 (3) Australasian Dispute Resolution Journal, 193 – 202).

Social/Societal conflicts are those that are fluid, moving from stage to stage, from emergence to escalation and de-escalation, and then to resolution. They include many small conflicts which interlock, with parties engaging in various strategies for the achievement of their goals.^[1] Societal conflicts are not always large-scale violent conflicts attracting the attention of the international community. They relate to social problems which may include issues around identity, race, gender, culture and class.

Conflict can arise in relation to values (Culture), goals (basic needs/Nature) and interests (Structure) and is a combination of attitudes, behaviour and contradictions.^[2] Galtung goes further to identify various forms of violence within society. Violence is defined simply as ‘any avoidable insult to basic human needs’.^[3] Basic needs, according to Galtung, include survival, wellness, freedom and identity needs. ^[4] Violence includes direct violence, cultural violence and structural violence. Direct violence is a form of physical violence directed by one person at another or at a group, which injures physically. Structural violence exists when institutions and systems employ discriminatory practices toward a group and cultural violence exists when discriminatory practices are not condemned by mainstream groups or government institutions.^[5] Galtung argues that direct violence can result when injustices are woven into the social structure of society and there is polarisation (social distance) and frustration.^[6] Frustration can lead to violence[7] but regardless of the absence of violence, conflict may exist, lying covertly under existing structures.  The flame of conflict can be fanned by negative societal discourses embedding prejudices, stereotypes and ethnocentrism.

But societal conflicts, as with any other type of dispute, can be functional in that they can promote social change, facilitate reconciliation of legitimate interests, discourage premature decisions for fear of antagonism and foster group solidarity.^[8] Realising positive outcomes however requires cooperative processes.  Processes in which frank and open conversations can be had regarding underlying issues including value-differences, perceived divergence of interests and needs.^[9]

A conflict resolution approach designed to achieve social change based on social justice values would require a vision of what a just society looks like.[10]  A just society, it is argued, is one where justice, freedom, equality and peace are core values. A society that emphasises the need for addressing societal conflict by engaging with underlying causes of conflict. A conflict resolution process that will inject values (justice, freedom, equality and peace)[11] into the conflict conversation to bring about a change; a change that will end the cycle of conflict. Not all conflict resolution processes have the injection of values at their core, but restorative justice processes could be useful in this regard.

Restorative justice is an approach to conflict resolution used where a community has been harmed by the action of one of its own.  This approach is used mostly in relation to criminal offending but the values underlying it are useful in the context of societal conflicts where a section of the community may be feeling excluded and undervalued;^[12] where people and relationships have been violated and the goal is to seek healing and put right the wrongs. It is process in which taking responsibility is important. The goal must be clear and centred on achieving social justice, and the forum must be designed to provide an opportunity for genuine and honest conversations about the implications of negative public discourses on peoples, including minority groups. It must include taking steps to redress the situation where possible.

[1] Louis Kriesberg ‘The State of the Art in Conflict Transformation’, Berghof Handbook of Conflict Transformation, Article, [50-69] available online at https://www.berghof-foundation.org/fileadmin/redaktion/Publications/Handbook/Articles/kriesberg_handbook.pdf   

[2] Johan Galtung, ‘Peace by Peaceful Conflict Transformation – The TRANSCEND Approach’ in Charles Webel and Johan Galtung (eds), Handbook of Peace and Conflict Studies (Routledge, 2007) 22.

[3] Johan Galtung and Dietrich Fischer, ‘Violence: Direct, Structural and Cultural’ in Johan Galtung, Pioneer of Peace Research, (Springer Briefs on Pioneers in Science and Practice, Springer, Berlin, Heidelberg, vol 5, 2013) 35.

[4] Johan Galtung and Dietrich Fischer, ‘Violence: Direct, Structural and Cultural’ in Johan Galtung, Pioneer of Peace Research, (Springer Briefs on Pioneers in Science and Practice, Springer, Berlin, Heidelberg, vol 5, 2013) 35-36.

[5] Johan Galtung, ‘Peace by Peaceful Conflict Transformation – The TRANSCEND Approach’ in Charles Webel and Johan Galtung (eds), Handbook of Peace and Conflict Studies (Routledge, 2007) 29; Johan Galtung and Dietrich Fischer, ‘Violence: Direct, Structural and Cultural’ in Johan Galtung, Pioneer of Peace Research, (Springer Briefs on Pioneers in Science and Practice, Springer, Berlin, Heidelberg, vol 5, 2013) 35.

[6] Johan Galtung, ‘Peace by Peaceful Conflict Transformation – The TRANSCEND Approach’ in Charles Webel and Johan Galtung (eds), Handbook of Peace and Conflict Studies (Routledge, 2007) 18.

[7] Johan Galtung, ‘Peace by Peaceful Conflict Transformation – The TRANSCEND Approach’ in Charles Webel and Johan Galtung (eds), Handbook of Peace and Conflict Studies (Routledge, 2007) 18.

Dean G Pruitt and Sung Hee Kim, Social Conflict: Escalation, Stalemate, and Settlement (McGraw Hill, 2004) 10-11.

[9] Bernard Mayer, Beyond Neutrality: Confronting the Crisis in Conflict Resolution (Wiley & Sons, 2004) 172.

[10] Alicia Pfund (ed), From Conflict Resolution to Social Justice – The Work and Legacy of Wallace Warfield (Bloomsbury Academic, 2013) xxxii.

[11] Lola Akin Ojelabi and Tania Sourdin, ‘Using a Values-Based Approach in Mediation’, 2011 (22) Australasian Dispute Resolution Journal 258.

[12] Brenda Morrison and Eliza Ahmed, ‘Restorative Justice and Civil Society: Emerging Practice, Theory, and Evidence’ (2006) 62 (2) Journal of Social Issues 209. The paper refers to a values-oriented conception of restorative justice.

Lola Akin Ojelabi

(Adapted from Lola Akin Ojelabi, “Dignity and Culture in Dispute Resolution” (2020) 8 (1) Griffith Journal of Law and Human Dignity 1, 52 – 84).

Human dignity is central to solving human problems including disputing. It is also important in dispute resolution and management. While there are different conceptions of dignity, human dignity as the capacity of humans to reason and make free moral decisions is synonymous with individual autonomy or the capacity for self-determination. This conception of human dignity  yielding to self-determination is critical in modern mediation/dispute resolution. Another conception of dignity is substantive dignity – ‘the enforcement of substantive values … living in a certain way’^[1] particularly the  aspect that promotes ‘access to social and economic goods, enabling one to maintain a certain minimum standard of living’.^[2] Arguably, the whole idea of promoting access to justice is based on this conception of human dignity. Access to justice is referred to as the right of individuals to access processes for the efficient and effective resolution of their disputes.^[3] In decision-making processes, valuing human dignity should lead to conclusions that accord human worth; giving recognition to individuals’ basic need for esteem and respect.  

Human dignity and autonomy is about the capacity of humans to reason and make free moral decisions. As noted above, it is sometimes considered synonymous with individual autonomy, that is, ‘the ability of each person to determine for himself or herself a view of the good life’^[4] in other words, freedom of choice and in dispute resolution in relation to process and outcome. It is the extent to which parties are free to choose the process, select the procedure to be followed and determine the outcome of the dispute resolution process. While not all dispute resolution processes give effect to this autonomy, those that do could be referred to as dignifying processes. These processes promote party decision-making and require parties to consider other parties’ interests while aiming at a win-win solution.^[5] These processes could be collaborative problem-solving or cooperative processes including negotiation and mediation in their pure forms. Principled negotiation, which also forms the basis of pure facilitative mediation has four elements: separating the people from the problem, focusing on interests and not positions, inventing multiple options prior to deciding, and applying objective criteria.^[6] These elements, when fully explored, support human dignity as autonomy.

Mediation, particularly facilitative mediation, promotes the self-determination of participants.^[10] Self-determination is the parties’ freedom to make decisions in their own best interest without interference from others, including other parties and dispute resolution practitioners (DRPs). Concerns about self-determination relate to the level of impartiality of DRPs, including whether they give advice to parties or pressure parties to reach a settlement. Other concerns include the extent to which a party may participate in the process, including whether they have a voice and the effectiveness of their voice in the process. The latter concern can be further explored though a consideration of factors that may limit the effectiveness of a party’s voice.^[11] These factors are multiple and include lack of familiarity with process, not understanding responsibility in the process, power imbalance including informational asymmetry, access to resources, lack of understanding of legal issues and lack of access to legal representation or other professional support and the involvement of repeat players. Full exercise of individual autonomy may be inhibited by these factors. Other factors include cultural bias, stereotypes, prejudices and incorrect assumptions about a party in relation to their cultural identity, including race and ethnicity.^[12]

In negotiation and mediation, parties are the ultimate decision-makers. By focusing on the problem and not the people, parties refrain from an attack on the person but focus on the problem.  In addition, negotiators must recognise that they ‘are dealing not with abstract representatives … but with human beings [with] emotions, deeply held values, and different backgrounds and viewpoints’.^[7] The relationship between the parties in this process should exhume ‘trust, understanding, respect’ but of course, this is not always the case. As noted by Ury et al, people ‘are prone to cognitive biases, partisan perceptions, blind spots, and leaps of illogic’, they ‘get angry, depressed, fearful, hostile, frustrated, and offended. They have egos that are easily threatened’ and ‘see the world from their own personal vantage point’^[8] without consideration for others. What Ury et al teach about separating the people from the problem is to avoid these human pitfalls through a focus on relationship, giving value to the other party, empathy, refraining from blaming, and face-saving among other things. This is the responsibility of parties in negotiation because they control both the process and the outcome of negotiation. Both parties have a ‘voice’ in the decision-making.^[9]

In mediation, ethical standards impose responsibilities on third parties to ensure effective participation in the process.^[13] Third parties must give opportunity [to parties] to speak and to be heard^[14] and to enable balanced negotiation between parties^[15] among other things. To accord dignity to every party in a DR process, the five core interests of any human being must be satisfied. The interests are autonomy, appreciation, affiliation, role and status. Paying attention to these interests ‘can build rapport and a positive climate for problem-solving’.^[16] The reason is not far-fetched: human dignity is a universal need. ^[17]  Paying attention to a party’s voice is an important core need in dispute resolution and would go a long way to safeguard the dignity of parties.

[1] Neomi Rao, ‘Three Conceptions of Dignity in Constitutional Law’ (2011) 86 Notre Dame Law Review 183 at 187.

[2] Lucy Michael, ‘Defining Dignity and Its Place in Human Rights’, (2014) 20(1) The New Bioethics, 12 at 22.

[3] Access to Justice Taskforce, A strategic framework for access to justice in the federal civil justice system, Attorney-General’s Department, Australian Government, Canberra (Report 2009).

[4] Charles Taylor, ‘The Politics of Recognition’ in Amy Gutman (ed), Multiculturalism: Examining the Politics of Recognition, Part One, (Princeton University Press, 1994) 57.

[5] William Ury, Roger Fisher and Bruce Patton, Getting to Yes: Negotiating an Agreement Without Giving In (Random House Business Books, 2012) 11.

[6] William Ury, Roger Fisher and Bruce Patton, Getting to Yes: Negotiating an Agreement Without Giving In (Random House Business Books, 2012)  11.

[7] William Ury, Roger Fisher and Bruce Patton, Getting to Yes: Negotiating an Agreement Without Giving In (Random House Business Books, 2012)  20-21.

[8] William Ury, Roger Fisher and Bruce Patton, Getting to Yes: Negotiating an Agreement Without Giving In (Random House Business Books, 2012)  20-21.

[9] John Thibaut and Laurens Walker, Procedural Justice: A Psychological Analysis (Lawrence Erlbaum Associates, Publishers, 1975) 1-2.

[10] National Mediator Accreditation System (NMAS), Practice Standards, July 2015, cl 2.2. It defines mediation as a process “that promotes the self-determination of participants.  and in which participants, with the support of a mediator: (a) communicate with each other, exchange information and seek understanding (b) identify, clarify and explore interests, issues and underlying needs (c) consider their alternatives (d) generate and evaluate options (e) negotiate with each other; and (f) reach and make their own decisions”.

[11] Lola Akin Ojelabi, ‘Exploring Voice as a Justice Factor in Mediation’, (2019) 38 Civil Justice Quarterly 459.

[12] David Kahane, ‘What is Culture? Generalizing about Aboriginal and Newcomer Perspectives’, in Catherine Bell and David Kahane (eds), Intercultural Dispute Resolution in Aboriginal Contexts, (UBC Press,  2004) 28 – 56.

[13] National Mediator Accreditation System (NMAS), Practice Standards, July 2015, cl 7:4.

[14] National Mediator Accreditation System (NMAS), Practice Standards, July 2015, cl 7:5.

[15] National Mediator Accreditation System (NMAS), Practice Standards, July 2015, cl 7:4 , 7:7.

[16] William Ury, Roger Fisher and Bruce Patton, Getting to Yes: Negotiating an Agreement Without Giving In (Random House Business Books, 2012) 32.

[17] William Ury, Roger Fisher and Bruce Patton, Getting to Yes: Negotiating an Agreement Without Giving In (Random House Business Books, 2012) 32. Autonomy is referred to as ‘the desire to make your own choices and control your own fate’.

Written by Rosemary Howell, University of New South Wales. First posted on the Kluwer Blog on May 22 2019.

National Mediation Conferences are important events. Apart from the great opportunities to network with fellow professionals there is the really important opportunity to see the intersection of research and practice at work.

Last month’s Australia’s National Mediation Conference did not disappoint.
For me the highlight was becoming acquainted with a bold Australian initiative sponsored by the Dispute Settlement Centre of Victoria (DSCV). Focussing on community disputes about things like fences, trees and noise the Centre had an ambitious plan to:
• devise a reliable process to identify their user profile and the differing levels of complexity their disputes presented;
• adopt the Sander approach and ‘’fit the forum to the fuss’;
• establish realistic settlement rates based on dispute characteristics; and
• develop a realistic budget to ensure the outcome could be realised.

The process – build a strong research base

The first step for the DSCV was to find the right project leader.

They found the perfect custom-made candidate in Danielle Hutchinson. Co-Founder of Resolution Resources, a lawyer, mediator and academic, Danielle was already an ADR Specialist at the DSCV.
Seeking a sound structural base for the project, she drew on 3 key research resources which provided learnings about the relevance of party goals and dispute features namely:
• The Singapore report by Danielle Hutchinson and Emma-May Litchfield (2016)
This was the inaugural report from the Global Pound Conference Series 2016-17. In this report the authors identified the needs, wants and expectations of parties in dispute and placed them on a continuum – creating three levels of ‘dispute-savviness’ – the expert dispute resolver, the competent dispute resolver, and the ineffective dispute resolver.
• Why do people settle? by Julie Macfarlane (2001)
In her paper Macfarlane examines the assumptions and behaviour of participants in dispute settlement processes – enhancing our understanding of why some disputes settle, and others do not.
Her key argument is that it is how disputants see things and how they make sense of their conflicts that have the greatest influence on outcomes – a significant step away from the rational, predictive model emphasized by most legal scholarship.
• Matching Cases and Dispute Resolution Procedures (2006) by Frank Sander and Lukasz Rozdeiczer. The significance of this work is the authors’ analysis of disputes leading to guidance for lawyers and their clients’ in:
1. selecting a particular process and then
2. designing a new or hybrid process specifically fitted to the needs of the parties.
They proposed that matching processes may be just the first step of the process choice. What needed to follow was the parties modifying their preferred procedure to suit the particular needs of their dispute.

And so TRAMM was born!

Triage Resourcing Modality Matrix is more than a mouthful.
What it does is:
• Collects and makes sense of all the information collected at intake;
• Factors in the context of the dispute;
• Identifies the process that is the best match for the parties (Triage);
• Allocates appropriate resources; and
• Uses ongoing satisfaction measures to validate triage consistently.

How it works – a psychometric approach to creating an analytical tool

The tool presents a compelling visual of everything in play when the DSCV is first contacted. The tool has:
• A vertical axis factoring in parties aspirations and goals and linking them to the likelihood of resolution (drawing on Hutchinson & Litchfield and Sander’s work); and
• A horizontal axis identifying and ranking factors likely to help or hinder resolution (drawing on the research of Sander and Macfarlane).

The output?

The power of the tool is in combining the two hierarchical axes to:
• Predict an outcome;
• Recommend the dispute resolution process that is most resource-effective and best for the dispute; and
• Maximise opportunities for a good outcome.

The human element

Trained mediators, operating as dispute assessment officers, input the data from an initial telephone assessment. They make their own assessment of likely resolution and the best process to use. This is used to continually test TRAMM’s accuracy against that of experienced assessors.

The results are remarkable!

The big picture is more complex that there is room for in this blogpost however a few key outcomes caught my attention:
• TRAMM is outperforming human operators in matching parties to processes and in predicting outcomes;
• The linkage to the Singapore Report and its identification of ‘dispute savviness’ really shows its value here. The emerging data from TRAMM provides the opportunity to explore and demonstrate whether:
o ‘dispute savviness’ makes dispute goals more realistic and more amenable to resolution;
o disputants lacking ‘dispute savviness’ have a disproportionately higher impact on likelihood of resolution and whether it is a wise investment to target them in the preparation process and coach them to higher levels of ‘dispute savviness’; and
o whilst one of the intentions of the project was to maximise resource effectiveness it was not conceived as a cost-cutting exercise.

This is a great outcome
In particular there are 2 overarching achievements that deliver a loud message:
• at a time when the academic and practising worlds seem far apart this is a case study in what happens when we bring them together. One and one has truly made three; and
• when a good outcome, rather than forcing budget cuts, is the goal we do the right thing for the right reason – and surprisingly, as happened here, more cost effective outcomes often result. Well done Danielle and DSCV.

Written by Dorcas Quek Anderson, Singapore Management University School of Law.

This post is based on a presentation made at the National Mediation Conference, Canberra, April 2019. The presentation has been drawn from two articles, Ethical Concerns in Court-Connected Online Dispute Resolution (2018) 1-2 International Journal of Online Dispute Resolution 20, and The Convergence of ADR and ODR within the Courts: The Impact on Access to Justice (2019) 38(1) Civil Justice Quarterly 126.

The proliferation of court ODR systems

Online dispute resolution (ODR) systems have been increasingly embraced by the courts in many countries as the new way to enhance access to justice. Notable examples include the future Online Solutions Court in England and Wales, the Civil Resolution Tribunal in British Columbia, Utah’s ODR system for small claims, and the internet courts in China.

This diagram from the US Joint Technology Committee’s report on ODR for Courts (p. 3) helpfully illustrates how a full-fledged court ODR system typically brings the use sequentially through the steps of triage or problem diagnosis, negotiation, facilitation and online hearings:

The Civil Resolution Tribunal (CRT) in British Columbia is probably one of the most well-developed systems. Designed to handle condominium property claims and small claims (and motor accident claims this year), the CRT features an end-to-end process combining dispute resolution phases and focusing on early participation by parties. The first phase provides initial problem-diagnosis and self-help through the online tool Solution Explorer. This software uses guided pathways to help the user learn more about the dispute, and then diagnoses the problem according to relevant legal rights, and provides tools such as letter templates that can deal with the problem. If the dispute is not resolved at this stage, the user can formally commence a claim through an online intake process that will give notice of the claim to the opposing party. The claimant is then brought to the second phase in which the parties are able to negotiate directly using the online system. The third phase of facilitation introduces the human facilitator to the process. The facilitator draws on a wide range of ADR processes, including mediation and non-binding neutral evaluation, to assist the parties to reach an agreement. In the event that the parties cannot agree, the facilitator takes on a case management role and helps the parties narrow their issues and prepare for the next phase. The final phase of adjudication is usually conducted remotely through asynchronous communication channels. If an oral hearing is needed, it is conducted via telephone or video-conferencing.

Why examine “old” ethics?

These ODR systems offer unprecedented opportunities for the thoughtful and imaginative application of dispute system design principles to meet the goals of the courts, and, as noted by ODR commentator Rabinovich-Einy, generate legitimacy in court processes. It also means that the goals and core values underlying court dispute resolution should be clearly articulated and guide the design of these systems.

In this regard, my research looks back at the “old” ethical difficulties that used to confound the mediation community and the courts, and asks whether these challenges will resurface in the new ODR context. My conference presentation examined two “old” ethical difficulties concerning levelling the playing field between disputants; and whether the system should have distinct ADR processes. This post focuses on the first issue.

Levelling the playing field between disputants

One distinctive characteristic of the highly successful court ODR systems is the provision of guided triage that empowers users to resolve the dispute. The Solution Explorer tool in the CRT uses guided pathways to help the disputant learn more about disputes, then to diagnose the problem in terms of the relevant legal rights and to provide self-help tools. The Utah system for small claims has placed even greater emphasis on education. Apart from providing customised self-help resources and legal services at the start of the process, this system also assigns a facilitator to the case once all the parties have joined the Web portal. One of the facilitators’ key functions is to provide limited legal advice and provide individualised education and assistance. When describing the system, Utah Supreme Court justice Deno Himonas commented that the relevant rules may have to be amended to allow the facilitator to give limited legal information even though he or she is not acting as counsel for either party.

The emphasis on customised education and problem-diagnosis has resulted in ODR as the ‘fourth party’ expanding the scope of the courts’ intervention in disputes. The court’s role is being transformed from an impartial and detached adjudicator to a more proactive problem-solver. Notwithstanding the great gains to be reaped from this development, this change results in considerable tension between the following ethical principles:

This tension is not new to mediators. We often observe informational asymmetry amongst the disputants. One party may be a repeat player in the courts or may have received sophisticated legal advice. By contrast, the other party could be misinformed about his or her legal rights. As mediators, we are familiar with the struggle in deciding how much to intervene to help the disputants to make informed decisions. This dilemma is apposite in court-connected mediation, where it is arguably more important to uphold the perception of the court mediator’s impartiality.

In the court ODR context, this dilemma could be more acute. The ODR system’s value lies in its great potential in levelling the playing field between parties where there is information asymmetry. Notably, 94% of the parties resolved their dispute at CRT’s Solution Explorer stage without requiring further intervention.

However, should the courts level the unequal playing field? There is the risk of the courts taking on a more active role than they have been accustomed to. On this point, Katherina Palmgren, in her report exploring the use of ODR in Victoria (p. 7), noted below the faint distinction between providing legal information and legal advice. The latter is, of course, deemed more objectionable, but the courts may inadvertently provide legal advice when giving customised problem diagnosis.

One of the main concerns in relation to the online court is the provision of ‘legal information’ by the court to the court user during the exploration stage of the online process. This is a new and foreign concept to the courts which gives rise to the question: what is the distinction between ‘legal information’ and ‘legal advice’? Is this a blurry line that ought not be walked by the courts? Some say yes, but many say no. Take for example registry staff, they walk this line every day and do not necessarily think it is a difficult one. Simply put, when you provide information that is general and factual in nature such as the applicable legal principles on a subject matter, that is legal information and educational in nature. When you provide information that is tailored to the particular facts of a case, that is legal advice. Common concerns raised in relation to the provision of legal information during the exploration stage are: what if the information provided at the exploration stage is incorrect? What if there is a loophole in the legislation that a lawyer could have advised on?

We also need to ask the related question of whether the playing field should be levelled in all cases involving informational asymmetry. Will the courts being seen as assisting one party more than the other? This question may not be an acute concern in claims involving self-represented disputants. However, this tension warrants serious consideration once the ODR system is extended to other types of legal claims where lawyers are involved and there is the resulting expectation of more limited court intervention in levelling the uneven playing field. When lawyers are allowed to participate in the ODR system, it is arguable that the parties expect an inherently unequal playing field owing to the differing levels of legal assistance. In such circumstances, the courts’ efforts to level the playing field could be perceived as unwelcome interference. This issue has yet to arise in systems such as the CRT, where parties are not allowed to have legal representation. Nonetheless, as court ODR expands its scope, it is very likely to be used in more complex and higher value claims in which lawyers cannot realistically be excluded. The courts therefore need to discern when its proactive intervention through educating the parties will be perceived as compromising its even-handedness.

Looking ahead, it is not inconceivable for future court ODR systems to provide the disputants not only with legal information, but also assisted decision-making or negotiation tools. These tools could be used at the negotiation and facilitation stages to enable court users to understand the merits of their case more accurately, or to arrive at negotiated agreements that maximises value. These tools are currently available outside the court context. If incorporated into a court ODR system, they will empower disputants to make well-informed decisions. Again, there could be an impact on the courts’ perceived impartiality. Will the suggestions of these tools be seen as being endorsed by the courts? What if a disputant takes issue with the input of these tools, arguing that he or she was misled to arrive at a settlement? Also, will the disputants be assured that the tools provided by the ODR system is giving equal assistance and support to each person?

Implications for Court ODR

There are many practical implications arising from the above questions. To avoid the perception of partiality, the courts could take practical steps to dissociate themselves from the provider of the legal information. For instance, they could collaborate with external agencies so that the resources provided are not attributed to the courts. In this respect, Utah’s system provides access to licensed paralegal practitioners that are not employed by the courts. During the pilot of the small claims project, the facilitators were volunteers who did not represent the courts or either of the parties. The perception of even-handedness could also have a discernible impact on the design of the online self-diagnosis tools. Although the system provides individualised and customised triage, it could simultaneously assure users that all parties in the dispute are provided with the same information and tools. The courts also have to carefully consider whether the ODR system should incorporate decision-making or negotiation support tools in the future.

The enduring relevance of ethical principles

Dispute resolution is slowly but surely evolving in the private and court contexts, bringing about exciting possibilities by breaking down conventional boundaries between modes of dispute resolution, and introducing algorithmic support tools and information. This post seeks to encourage a deeper consideration of how dispute resolution ethical principles will remain relevant in a rapidly changing environment. Some of the “old” ethical conundrums have to be confronted in order to develop systems that are grounded on clear goals and values. Despite swift changes in dispute resolution, the foundational ethical principles have enduring value for the future. Will we draw from our past lessons to guide us in the future development of dispute resolution? Do share your views on what other “old” ethical issues could resurface in the ODR environment.

The PhD Session at the just concluded National Mediation Conference featured John Woodward, Joe Harman, Joanne Clarke and Jackie Weinberg discussing their PhD research topics. The discussion was interesting and stimulating and each research topic makes a positive contribution to Alternative Dispute Resolution (ADR) theory and/or practice.

Judge Joe Harman discussed his research which explores the nature of mediation confidentiality and the interaction of mediation confidentiality with family violence. So far, two papers have been published on the origins of mediation confidentiality and attitudes of mediators and others towards mediation confidentiality. The first, titled ‘Mediation Confidentiality: Origins, Application and Exceptions & Practical Implications’ is published in the Australian Dispute Resolution Journal, and the second titled, ‘An Imperfect Protection: The Attitudes of FDRPs to Mediation Confidentiality’ is published in the Bond Law Review. Forthcoming papers include on whether mediation should be the first step in all family law proceedings, and on the intersection of family dispute resolution and family violence.

Dr John Woodward’s PhD, now concluded, adopted a qualitative methodology to explore the relationship between confidentiality and disputant participation in facilitative mediation occurring in the shadow of the law where disputants are represented by lawyers. A prominent theme which emerged from the research was lawyer perceptions that disputant participation risks compromising the legal case or “giving away” confidential information which may be misused in the hands of an opponent. This perception is based on the uncertainty around the nature of mediation confidentiality and the extent of its protection. As such, disputant participation is limited. The research concludes that there is a need to do more to clarify the meaning of confidentiality so that disputants may reap the full benefits of the mediation process.

Jackie Weinberg’s PhD is studying ADR in Clinical Legal Education (CLE). The research explores whether ADR should be taught in various legal clinics across Australia; what aspects of ADR should be taught to students; why it might be valuable to teach ADR to clinical students; and in what ways teaching of ADR in the clinical context can be enhanced. Data has been collected using semi-structured interviews and observation of interaction between clinic supervisors and students. The research outcomes include theoretical insights into ADR teaching in CLE, new knowledge on ADR skills acquisition in CLE, empirical insights into how the role and impact of ADR in clinical legal education settings can be measured and recommendations pertaining to the teaching of ADR in Australian clinical legal education.

Finally, Joanne Clarke’s research explores the discourse of conflict resolution in western liberal tradition which positions ‘competing interests’ or ‘communication difficulties’ between individuals as the origins of family conflict notwithstanding that conflict is complex and contextual. Western liberal tradition’s dominant response to conflict is to apply a rational problem-solving model of conflict resolution and this has tended to ignore the complexities of people’s lives and promoted simplistic ways of viewing conflict and related concepts such as power and identity. In contrast, post-structural ideas offer a more complex understanding of conflict in the proposing of multiple realities that are culturally and historically created and challenge the idea of a universal truth. Most importantly, these theories identify the links between knowledge, language and power, highlighting how dominant discourses create conflict through privileging reality and meaning. This makes it essential for FDR practitioners to be aware of the broader social/structural origins of conflict and more importantly because many FDR matters involve family violence.

The Australian Dispute Resolution Research Network’s (ADRRN) Roundtable coming up 9-10 December 2019 provides another opportunity for ADR researchers including PhD students to discuss their research. The Call for Papers may be viewed here.

The Commonwealth Secretariat is conducting a Study on challenges to accessing international commercial arbitration across the Commonwealth, and potential solutions (http://thecommonwealth.org/arbitration-study). The Secretariat was requested to conduct the study by Senior Officials of Commonwealth Law Ministries at their meeting in London in October 2018.

The aim of the study is to understand the use of international commercial arbitration in addressing commercial disputes across the Commonwealth, as well as ways in which member countries may strengthen the accessibility and effectiveness of international commercial arbitration. The study will be authored by a group of distinguished arbitration experts, advised by a task force representing arbitration expertise from every region of the Commonwealth.
As part of the study stakeholders are asked to fill out relevant questionnaires:
arbitrator, counsel, business, academic (closed).

The Study is expected to be completed for consideration at the meeting of Commonwealth Law Ministers in late 2019 and will be publicly available on the Commonwealth Secretariat website.

We are delighted to announce our Call for Papers (click here for Word version) for the 8th Australasian Dispute Resolution Research Network Roundtable, to be held at Latrobe University Law School in Melbourne on 9th and 10th December 2019. Please note that this post is the only way that we advertise the Roundtable, so please disseminate to any researchers who may be interested.

Call for Paper Proposals

The 8^thAnnual Research Roundtable of the Australasian Dispute Resolution Research Network (ADRRN) will be held in Melbourne, 9-10 December 2019.

ADRRN roundtables provide a collaborative and supportive research environment for work-shopping papers-in-progress. Draft papers are distributed ahead of time to participants, to enable thoughtful and constructive quality feedback. Time allocated for a presentation is usually 30 minutes for presentation, and 30 minutes for feedback and discussion. Two primary commentators are appointed for each paper.

The ADRRN is now calling for papers for the 2019 roundtable to be held at the La Trobe Law School, La Trobe University Melbourne, City Campus. Paper proposals of no more than 300 words should be submitted via email to adrresearchnetwork@gmail.comby 31 July 2019. Presenters will be required to submit, in addition to draft papers, a short blog post of no more than 1000 words prior to the roundtable. Blog posts will be published here on the ADRRN’s webpage:  https://adrresearch.net/.

Paper proposals that consider dispute resolution from a scholarly, critical and/or empirical perspective are welcome. We particularly encourage submissions from postgraduate students and early career researchers. All proposals will be considered. Papers must not have been published or submitted for publication, as the focus is work in progress.

A selection panel will select round table papers from abstracts submitted. The following selection criteria will be applied:

• Papers take a scholarly, critical and/or empirical perspective on an area of dispute resolution;
• The round table will include a spread of participants across stages of career; and
• A well-balanced range of work will be presented at the round table to provide diversity, to develop the field and to enable cohesive discussion.

Participation is on a self-funded basis.

Attendance at the Round Table is only open to individuals who are contributing to the scholarly discussions by presenting a paper, or commentating and/or chairing a session.

Deadline for paper proposals: 31 July 2019

(300 word maximum plus short bio, to adrresearchnetwork@gmail.com)

Date for notification: 16 August 2019

Draft (full) papers + blog post due: 31 October 2019 (to send to participants early Nov.)

For further information, please contact:

2019 Network President: Lola Akin Ojelabi via adrresearchnetwork@gmail.com

2019 Roundtable Conveners: Lola Akin Ojelabi and Jacqueline Weinberg

About the Australasian Dispute Resolution Research Network

The Australasian Dispute Resolution Research Network brings together leading dispute resolution scholars and provides a collaborative environment to foster, nurture and enrich high quality research and scholarship. The Network is inclusive and forward-looking and seeks to bring together emerging, mid-career and established scholars to build excellence in the field and provide peer support. Network activities are expressly designed to provide a supportive and collegial presentation environment in which meaningful discussion and constructive feedback is provided to the presenter.

Network activities include maintaining the ADR Research Network blog at www.adrresearch.net on Twitterand conducting annual scholarly round tables of work in progress since 2012.

Guest blog post proposals are always welcome. Contact blog editor Olivia Rundle, at Olivia.Rundle@utas.edu.au.

Membership of Australasian Dispute Resolution Research Network

We don’t like hierarchies or unnecessary administration, so we don’t have any membership list or legal organisational framework.

The way to become a member of the ADR Research Network is to subscribe to the blog. This is our primary means of communication.

Subscription will mean that every time a post is made on the blog you will receive a notification alert to your email address. Other ways to follow blog activity is through Facebook “ADR Research Network” and Twitter@ADRResearch, but engagement on these platforms is not necessary to keep track of blog activity.

This blog post written by Dr Sue Prince, University of Exeter is an abridged version of paper delivered at the ADR Research Network Roundtable held from 4-5 December 2017 in Dunedin, New Zealand.

The court as an imposing building exists as a symbol of the ideal of justice: the Central Criminal Court at the Old Bailey in London has Lady Justice standing on the top of its dome, demonstrating the vital importance of the rule of law. Yet the symbolism of the local court as a fixture of the community no longer holds true. Certainly, in the civil courts there are many unresolved problems with the numbers of litigants-in-person who cannot afford legal support. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 gave rise to so many litigants-in-person that judges had to reconsider their approaches and become more inquisitorial in approach and less adversarial.

The County Courts Act 1846, which established the county courts, came into force with the idea that courts should be cheaper and more accessible. In 1847, following the introduction of the statute, there were 491 courts in England and Wales. Now, 170 years later, the estate has diminished to 173 county court buildings.   Civil courts are no longer so easily accessible and rarely occupy a place centrally in the community as they did in the past. Yet, the number of cases going to trial has also diminished and the number of alternative dispute resolution processes has increased: ombudsman and unregulated providers. As processes change so does their role. The building is no longer physically accessible but nor is it financially accessible to most, due to the lack of legal aid and increases in court fees that have been introduced by successive government policies. The system is no longer fit for purpose.

So, is it possible then to design an alternative system for small, low value cases using online tools that might operate to support court users through the legal system in a way that the system in operation in the court building never could? This was a question asked of a group of us who formed the Civil Justice Council Online Dispute Resolution Advisory Group a couple of years ago. We recommended the creation of an online court with online judges and online facilitators or mediators as well as an initial stage offering online information and help.    Such changes were supported by the Master of the Rolls, John Dyson LJ, who described our report as a catalyst for far-reaching reforms. As a potential solution to similar problems described above, online courts are being contemplated in various forms across the world.

In British Columbia, Canada, for example, the new online small claims process has replaced the court building with an end-to-end process which provides legal advice and direction, mediation and the potential for an online judge. In the UK, plans are now afoot for cases under £25,000 to be referred to an ‘Online Solutions Court’ which will integrate three distinct stages of justice.   In our ODR Report, we said that ODR was not science fiction. It proved that this was the case because the UK Government committed £700M to fully digitalise the courts, and to reform the legal system. Currently, HMCTS in the UK is embarking on the most ambitious programme of reform which embodies the ‘Online Solutions Court’ and other agile, digital by default reforms, currently in beta testing phase but soon to be launched across England and Wales.

Online dispute resolution has many of the qualities offered by ADR. Designers of current ODR systems tend to focus on the needs of the user and to facilitate these needs through the creation of pathways along which a litigant will travel, answering questions to personalise the experience, and to help specify the sort of actions required to meet the challenges of the legal system. As with ADR, ODR attempts to facilitate and empower, albeit not through face-to-face processes.   ODR has the potential to offer a different service: a series of pathways and gateways through the legal system, with the opportunity for the user to ask questions, or to have terms defined as they arise. In England and Wales, the proposal is for a facilitator to attempt to mediate the dispute before it goes before an online judge. Yet, the system itself exists as a form of ADR, because the technology operates as a form of ‘fourth estate’ to enable resolution where possible, or provide information along the way.   The very idea of introducing ODR precipitates a debate on many aspects of what the online court looks like; how it meets the demands of the rule of law, and what needs to change to give better access to justice. The role of public legal education and assistance become vitally important in a system which is not designed around the assumption of legal representation. The architecture of dispute resolution is not impeded by the introduction of ODR but instead it offers an opportunity to re-examine the court process and to see that what happens outside the building is as important, if not more important, as in the hearing room itself.

About Alysoun

I am an off-campus PhD candidate at the University of Newcastle – having just moved from Monash University.  I am also a Director and Fellow of Resolution Institute, and was the national vice-president of IAMA before its integration with LEADR.  I am an ADR practitioner and trainer, especially mediation training, and a Senior Mediator Member of the ACT Civil and Administrative Tribunal (having designed the mediation program that ACAT uses), and am on the mediator panels for the ACT Supreme Court and for the Arts Law Centre of Australia.  I am also a member of the ADR Advisory Council (ADRAC), of the Law and Society Association (USA), and of the American Bar Association Task Force on Research into Mediator Techniques.  Prior to entering the world of ADR, I worked in various public service positions, including as a senior policy advisor on illicit drugs, advising the then ACT Chief Minister; in that capacity, I conducted an extensive international consultation process that informed the ACT Government’s proposal for a trial of medically prescribed heroin.  I live on a mountain property in a small, remote community in NSW, where I am the Training Officer for, and an active member of, the local fire brigade.  My son lives and works in Seattle (USA), and I have immediate family in Sydney, and in Switzerland. 

Thesis Research Project

My research topic arose from my mediation practice and my training of mediators: what is it that makes some mediators so much better, or more effective, than others?  I am concentrating my research on review and analysis of existing empirical studies of mediation and of mediator techniques, and have been very fortunate to have access to a compilation of almost 90 reports from such studies that was pulled together by the ABA Task Force on Research into Mediator Techniques.   I am constantly updating and rewriting my research questions, but, in essence, they are:

1. What is known about mediator influence over participant behaviour and participant perceptions, including perceptions of mediation effectiveness?

2. What is known about what mediators actually do in mediation that is so influential?

3. How can mediator behaviour and levels of influence be effectively measured and analysed?

4. What differences might it make to existing theories about mediation, existing mediator practices, and existing mediator training regimes if specific mediator behaviours (rather than models of practice, or styles and approaches) were found to be key predictors of mediation effectiveness?

What is most exciting for me about my research?

I am thoroughly enjoying learning about mediation research, meeting ADR researchers (in Australia and overseas), and gaining insight into, and understanding about, the characteristics of very effective mediators. I am currently working with a US academic on a report to be presented by the ABA Task Force, and that is certainly an exciting project.  Last year, I attended a compulsory seminar on the philosophy of law and that activated every curiosity neuron in my brain, which is always an exciting event; however, the most exciting aspect of my research has been learning about the unfamiliar world of academic research: its social norms, its language and its rules.  It has been something of a cross-cultural experience for me. 

What challenges have I experienced with my research?

It seems to me that everything I have done around this research project has been a challenge.  For example, I have had to learn how to turn ideas into formal research questions; how to write in an academic style; how to consistently apply strict citation styles.  I have also had to master some of the infinite capacities of the internet so my off-campus attendance is neither isolating nor an obstacle.
While learning how to be an academic researcher has been exciting for me, it has also been a challenge.  Although I have conducted many graduate and post-graduate ADR courses at universities, these have always been in the form of 3 or 5 day intensives, rather than extended, regular university attendance.   Becoming an academic researcher is quite different from parachuting in for an intensive and then jumping back out.

Where would I like to go after I finish my research project?

Once this project is completed, I would like to progress to empirical study of mediator behaviour to identify, or confirm, what very good mediators actually do that makes them so much better.  Some commentators have referred to the ‘black box’ of mediation*, and I would like to see that dark, mysterious container opened so researchers can properly study what actually happens in a mediation, and mediators can use accessible research findings to improve their practice techniques.
On the other hand, my family owns a very small, mediaeval house in a perched village in Provence (built in around 1100AD), and I would really enjoy some time on its balcony, listening to the bees in the lavender, the church bells in the distance, and the rhythms of local greetings.   

* For example, see: L. B. Bingham, ‘Transformative Mediation at the United States Postal Service’ (2012) 5 Negotiation and Conflict Management Research, p 363; L. Charkoudian, ‘Just My Style: The Practical, Ethical, and Empirical Dangers of the Lack of Consensus about Definitions of Mediation Styles’ (2012) 5 Negotiation and Conflict Management Research, pp 371 and 380; J. A. Wall, Jr, and S. Chan-Serafin, ‘Processes in Civil Case Mediations’ (2009) 26 Conflict Resolution Quarterly, p 262. 

Apart from obvious issues such as language and those associated with being present in an unfamiliar territory, a conflict resolution practitioner must be sensitive to cultural issues relating to the ‘way of doing things around here’ and the extent to which the conflict is embedded in cultural ways of knowing.

A conflict resolution practitioner needs to be ‘culturally aware’ of, and ‘culturally sensitive’ to, the issues involved in the conflict including transportability and applicability of culturally distinct models of conflict resolution to a culturally constructed conflict. An awareness of, and sensitivity to, cultural issues would make the conflict resolution practitioner culturally competent, but the conflict resolution practitioner must also be culturally fluent.

Cultural fluency extends beyond both cultural sensitivity and awareness. It requires an awareness of one’s own cultural biases, assumptions, prejudices and stereotypes, and how those might impact on the conflict resolution process. Practitioners intervening in conflict situations must be aware of how their motives, actions, and expectations are culturally engendered and affect the conflict resolution process and the outcome.

Intervention must also include consideration of the ways in which culture becomes embedded in conflict and is politicised. The ability of the conflict resolution practitioner to use various techniques of intervention and to be creative is crucial to the resolution of cross-cultural conflicts. Intervening in cross-cultural conflict situations could be challenging because of the diversity and complexity of issues, but it is clear that intervention requires that conflict resolution practitioners be flexible, creative and fluent.

“Construcción del puente sobre el río Almonte” By Yeza (Own work) [Public domain], via Wikimedia Commons

You are welcome to share your experience as a third party in a conflict/dispute involving cultural issues including approach, skills and lessons learned.