Professor David Bamford of Flinders Law School invites interested dispute resolution researchers to attend the 2017 Civil Justice Research and Teaching Symposium. Keynote speaker is Carrie Menkel-Meadow, internationally renown dispute resolution scholar. An additional bonus is that the Adelaide Fringe Festival is on at the same time. You will see from the invitation that the Call for Papers is open.

The Civil Justice Research and Teaching forum is an established gathering of legal academics who teach civil procedure and conduct research into civil justice issues. Typically these gatherings have been informal and supportive opportunities to exchange ideas. There are many excellent reasons for dispute resolution focused academics to engage with this group. Obviously, formal civil justice processes are simply one narrow part of the broader dispute management and resolution system that deals with private disputes. As David Bamford said when I asked him whether I could make this post:

I would encourage the  dispute resolution scholars to attend. I really see what we do as a subset of the DR field – DR using courts.

To properly understand the civil justice system, it is essential to know about dispute resolution mechanisms that are part of that system. This is reflected in reports such as the Productivity Commission’s 2014 Access to Justice Arrangements, the focus on dispute resolution in civil justice research (see for example the Australian Centre for Justice Innovation’s Civil Justice Online Clearinghouse), and the teaching of dispute resolution within civil litigation/procedure units in Australian law schools (see for example: NADRAC, Teaching ADR in Australian Law Schools (2012); Pauline Collins, ‘Resistance to the Teaching of ADR in the Legal Academy’ (2015) 26 Australasian Dispute Resolution Journal 64, 68;  James Duffy & Rachel Field, ‘Why ADR Must be a Mandatory Subject in the Law Degree: A Cheat Sheet for the Willing and a Primer for the Non-believer’ (2014) 25 Australasian Dispute Resolution Journal 9, 17; Kathy Douglas, ‘The Teaching of ADR in Australian Law Schools: Promoting Non-Adversarial Practice in Law’ (2011) 22 Australasian Dispute Resolution Journal 1).

Many dispute resolution researchers who teach in law schools will be aware that consultation is in progress regarding a proposed amendment to the LACC/Priestley 11/Admission Requirement subject area of “Civil Procedure.” Essentially, the amendment would redefine the subject area as “Civil Dispute Resolution” and add “Dispute Resolution” to the list of sub-topics that must have been studied by applicants for admission to legal practice. This change reflects the reality that pre-trial civil procedure cannot be taught in isolation from dispute resolution mechanisms other than trial. The change has the potential to build better links between academics focused upon formal justice system processes and those focused mainly on non-judicial decision making. The Civil Justice Research and Teaching Symposium is an excellent opportunity to strengthen those bonds.

Some of our network members are already part of the civil justice research and teaching group, and we look forward to some new faces in Adelaide.

Dr Sue Douglas‘ presentation at the Australasian Law Teacher’s Association Conference in Wellington, New Zealand in July was titled “Constructions of Reflective Practice in Dispute Resolution”. This builds upon a paper that Sue presented at the 2014 National Mediation Conference.

The research project

Sue’s project is motivated by a curiosity about what FDRPs understand to be reflective practice. This focus on practitioner views is consistent with Sue’s preference for a ground up approach to her research. Sue is interviewing FDRPs on the Sunshine Coast about their understanding of reflection and the place that reflection has in their practice.

So far, Sue has found that the practitioners have diverse perspectives and practices. Practitioners do not appear to be familiar with literature about reflection or models of reflection.When asked whether it is important that they be supported to engage with literature about reflection, Sue noted the realities of practice and her belief that the practitioner experience should be a touchstone in the development of recommendations.

The planned outcome of the research is the development of a model for reflection that practitioners will be able to use within their practice context, and which supports high quality critical reflection. The model will be informed by the literature about critical reflection as well as the practitioners’ insights gained through Sue’s empirical work.

What is already known about reflection

Critical reflection is an important activity in dispute resolution practitioner practice, as it moderates and informs decisions regarding:

• neutrality and independence;
• unconcious bias;
• lack of neutrality;
• dealing with prejudices;
• cultural sensitivity;
• other ethical dilemmas;
• looking back on self; and
• taking a broad focus upon social structures and processes.

Reflection is a well established professional activity in many professions, who have developed standards and models to guide practitioners to be reflective. It is the activity that assists professionals to perform the artistry of practice.

Reflection is not mentioned in the National Mediator Accreditation Standards, but could be viewed as a “meta-competence.” A mediator specific model of reflection that builds upon what is already known from existing models and approaches in other professions, as well as the vast literature about reflection, will be a valuable contribution to the field.

This post has been contributed by Judith Herrmann and Claire Holland, who are both lecturers in the Conflict Management and Resolution program at James Cook University (JCU).

Judith and Claire presented at this year’s National Mediation Conference. They discussed their personal experiences with developing training for mediators in different cultural settings overseas, including the Thailand-Burma border and the Central African Republic (CAR). Claire and Judith reflected on how their studies in conflict management and resolution as well as their mediation training in Australia had assisted them in developing training modules in these different settings. They evaluated which skills and procedural features of the Australian facilitative mediation model they found to be of greatest use and which procedures needed to be modified to be applicable to the specific locations in which they worked.

The Australian mediation standards are based on a “Western” approach to dispute resolution, such as maintaining confidentiality, managing power imbalances, maximising self-determination, etc. and not all of them necessarily find exact application in other cultural settings. The concept of creating a ‘safe space’ to talk, for example, has a different meaning in a refugee camp compared to the Australian context. Also, the idea of having a third party with ‘no vested interest in the outcome’ is unrealistic in remote villages, such as in CAR, where village chiefs are often the accepted providers of all conflict resolution processes. Additionally, maintaining confidentiality can be both impractical and undesirable in particular contexts. When discussing how mediation could work for culturally specific conflicts, such as adultery or witchcraft, mediation practices taught in the western mediation models are especially challenged.

Ideally, mediation training and conflict resolution tools are developed with the needs of the recipients of the service in mind. When creating training resources that meet local needs it is important to consider how far the definition of ‘mediation’ can be stretched and what innovations can be adapted within the process that are supported by literature and informed by practice.

Judith and Claire highlighted challenges for practitioners who are trained in a “Western” mediation model and who are working in culturally diverse settings where the client’s prior experience and expectations of ‘mediation’ may differ greatly from the views of the practitioner/trainer. Judith and Claire flagged the importance of being flexible in one’s approach to meet the needs of the participants of a process, and to innovatively and creatively adapt one’s knowledge and skills to different contexts. The presentation also highlighted the benefits of sharing experiences with practitioners and academics to contribute to the conversation of the evolving nature of mediation practice.

Judith and Claire concluded that their postgraduate studies in Conflict Management and Resolution were invaluable in developing their ability to analyse and respond creatively to issues in various cultural settings.  Judith completed her studies at JCU, where she is now the Director of the Conflict Management and Resolution program. This program builds students’ knowledge and skills in analysing, managing and resolving conflict, with subjects such as negotiation, mediation, facilitation, group conferencing and conflict coaching. Courses on offer include a Masters, a Graduate Certificate as well as Professional Development options. JCU offers flexible study with online subjects and optional weekend block-mode classes. If you are interested in doing any further study in Conflict Management and Resolution, check out the JCU program at  www.jcu.edu.au/conflictresolution

Because the shadow of the law plays a part in most disputes, the ability to access law is essential for negotiators and (some) dispute resolution practitioners. Otherwise, the legal merits of a dispute cannot be assessed as one of the measures by which parties decide whether or not to resolve their matter in a particular way.

In Australia, AustLII provides an open access platform from which anyone can access legislation (both Acts of Parliament and subordinate legislation), case law from all jurisdictions (including many tribunals), and a plethora of secondary materials such as journal articles. There are alternative reporting services that many researchers who are affiliated with a university can access via a paid subscription service.

In the small states of the Pacific, the Pacific Islands Legal Information institute
(PacLII) provides the equivalent open access database of legal materials. There are no comparable or comprehensive subscription services.  If PacLII was diminished, there would be dire consequences for academics, legal and dispute resolution practitioners, and people who want to research the law in Pacific Island jurisdictions.

At the Australasian Law Teachers’ Association Conference in July in Wellington, New Zealand, University of the South Pacific  (USP) lecturer and new Director of PacLII Anita Jowitt spoke to conference delegates at the closing session. Anita alerted us to the fact that from 1 July 2016 PacLII’s funding is no longer assured. Whilst USP is continuing to support PacLII, options for the future sustainability of PacLII need to be explored quickly, and sustainability strategies implemented.  Anita noted that the Pacific Islands are in many senses a frontier of law, and support for PacLII also includes becoming part of the community of people who research and publish on Pacific law.

What to do

This post is intended to raise awareness of the problem. Readers are encouraged to consider how they can contribute to providing support for PacLII. Options might include:

• Making a financial contribution or starting fundraising to contribute to PacLII;

• Joining new research networks that PacLII is launching (the Pacific Constitutions Research Network paclii.org/pcn/index.html is now open);

• Contacting Anita and exploring other options such as tasking or sponsoring students with some of the work required to maintain PacLII (through internships etc).

Anita made it clear in her presentation that she wants to take a problem solving approach to the situation. She is open to ideas.

Anita can be contacted jowitt_a@vanuatu.usp.ac.fj

At the 2016 National Mediation Conference Olivia Rundle will be giving  a presentation drawn from a just released book called Sex, Gender, Sexuality and the Law, on behalf of the authorship team of Samantha Hardy, Olivia Rundle and Damien W Riggs. Professor Gillian Triggs, Human Rights Commissioner, writes in her Foreword:

The point is well made by the authors in this ground-breaking publication that the law  is not effective for the vast majority of those in the LGBTI community who experience discrimination, and who fail to report it. It is for this reason that community attitudes must change through education and evidence-based understanding of the damaging effect such discrimination has, not only on the immediate victim, but also on their parents, children and extended family and friends. The authors have gathered together all available evidence of discrimination against the LGBTI community in Australia and have put their research to highly practical use. They have provided detailed advice for practitioners – lawyers, mediators, the courts and service providers – who work with those who have been marginalised on the basis of their sex, gender, or sexuality.

Our book draws together legal and social science literature, legislation and case law to explore the legal treatment and common life experiences of people who are trans or gender diverse, intersex and/or non-heterosexual. We have deliberately avoided lumping together the distinct categories of sex, gender and sexuality, instead clarifying the specific characteristics that are relevant to topics that we discuss in the book. We start by explaining the terminology that we use, explore issues that affect individuals, then couples, then families who include a person who is trans or gender diverse, intersex and/or non-heterosexual. The final part of the book provides advice to professionals about how to improve the way that they deliver services to clients who may be trans or gender diverse, intersex and/or non-heterosexual.

The book project was inspired by some research results from a small pilot study in Victoria. The study invited mediation practitioners, potential and actual clients to contribute their ideas and experiences of mediation services. The results suggested that there was a gap between mediators’ perception of the suitability of their practice for diverse client groups and the actual needs of clients who are trans or gender diverse, intersex and/or non-heterosexual. In short, the mediator respondents demonstrated either discriminatory attitudes or ignorance of the way that they assumed that all of their clients were cisgender and heterosexual (and therefore did not practise in a way that was inclusive of trans or gender diverse, intersex and/or non-heterosexual clients). Some false expectations about non-heterosexual people were also evident in the results. The survey results have not been published before, but are discussed in Part 4 of our book.

There are largely unconscious assumptions in most contexts that people are either male or female, are the gender that was assigned to them at birth, that their intimate relationships are heterosexual, and that children are parented by a mother and a father who are both heterosexual. The pervasiveness of these assumptions has the effect of alienating and/or discriminating against people who do not fit into those categories. Furthermore, cisgenderism and heterosexism perpetuate an expectation that to be legitimised, people who are not cisgender and heterosexual must perform stereotypical expectations of being a heterosexual cisgender person, a heterosexual cisgender couple, or that children should experience as close as possible the heterosexual mother-father parented nuclear family. In her Foreword Professor Triggs notes:

The authors observe the paradox that, in order for the LGBTI community to have
their sexual orientation and diversity respected, it has become necessary that they
demonstrate how similar they are to traditional heterosexuals.

Our book challenges practitioners to engage in critical reflection upon the assumptions and expectations that they bring to their practice, and to learn different, more inclusive ways of engaging with their diverse community of clients. We hope that all practitioners, scholars and students who read our book will learn new information that will equip them to celebrate and improve the way that they work with the beautiful diversity in our society.

This post has been contributed by Dr Olivia Rundle and Dr Brendan Gogarty, of the Faculty of Law at the University of Tasmania.

Dr Olivia Rundle made a presentation at the Australasian Legal Teachers Association Conference 2016 about a Teaching Development Grant project that she is working on together with Dr Brendan Gogarty, and Alex McKenzie, a Tasmanian legal practitioner. Our project concerns the meaning of Australian Law Threshold Learning Outcome (TLO) 5(b), which states that “graduates of the Bachelor of Laws will be able to collaborate effectively.” By contrast to Australia, there are no standard learning outcomes prescribed in New Zealand, and the Faculty of Law at the Victoria University of Wellington (where the conference was held) states that its graduates “should have an understanding of the need for collaborative and cooperative behaviour in professional life.” Framing the graduate attribute in this way does not require the VUW Faculty of Law to assess students’ ability to collaborate, merely their awareness that it is needed in practice.

We want to unpack what TLO 5(b) actually means in the context of legal practice. Our project will inform our practice-centric teaching programme at the University of Tasmania.

Relevance to Dispute Resolution Research

The ability to collaborate effectively – or “work well with others” – is a foundational skill that is applied in dispute resolution contexts. Lawyers frequently engage in activities that contribute to the resolution of their clients’ disputes in the ordinary course of legal practice. Dispute resolution research will benefit from an improved understanding of the way that lawyers collaborate in general legal practice.

Do lawyers collaborate?

One of the reasons the TLOs have not been adopted as pre-admission requirements by Law Admission Authorities is that some senior members of the legal profession expressed concerned that many successful lawyers would not meet the threshold standards. In particular, the ability to “collaborate effectively” was singled out as something that many exceptional lawyers “do not, cannot or are not inclined to” do (Justice Slattery quoted in Steel, Huggins and Laurens). The immediate response of many practitioners we’ve talked to so far has been: “lawyers don’t collaborate”.  That seems to be a relatively widely held view (although not universal).

We are confident that the ability to collaborate effectively is an inherent requirement that all lawyers need, despite such claims from within the profession. Forms of direct and indirect collaboration in legal practice include: intra-firm collaboration, between lawyers (especially within the hierarchical nature of firm structures ) as well as between lawyers and other professionals working in the firm (i.e. conveyancers and administrative staff); inter-firm collaboration; between lawyers on either side of a dispute; intra-professional (solicitor to barrister); inter-professional (between lawyers and officers of the court, experts, medical professionals, accountants etc); and of course with the client.

Particular influences on collaboration in legal practice

There are some features of legal practice that have an impact upon the need for lawyers to collaborate effectively. These include joint and several responsibility and the obligation to provide legal representation within firms. Other features of legal practice can have a negative impact upon lawyers’ collaborative behaviour. They include time billing and targets (an individual activity that works as a disincentive to working with others within a firm) and competing responsibilities to the client, administration of justice and business partners/supervisors (these tensions push and pull incentives to collaborate).

Our teaching development project

Our teaching development grant is enabling us to investigate, evaluate, create and disseminate an evidence base and resources that support students to become competent in engaging with the unique challenges of working in teams within a firm environment. Our project involves the following activities:

1. Literature reviews of teaching standards, collaboration in legal practice;
2. Audit of collaborative learning activities, assessment tasks and instruction;
3. Liaison with students, legal professionals and teaching experts.

Part 3 will include a focus group with Tasmanian legal practitioners where we will ask them to discuss questions that will reveal how they collaborate with other people in the course of legal practice within firms, with clients, with other lawyers and legal institutions, and with non-legal professionals.

I recently attended the Australasian Law Teacher’s Association Conference (ALTA) hosted by the Victoria University of Wellington, in New Zealand. This is the first of a series of posts about dispute resolution research that was presented at the conference.

Dr Grant Morris

Dr Grant Morris is a Senior Lecturer at the Victoria University of Wellington’s School of Law. Grant’s dispute resolution related
research is in the negotiation and mediation spheres, and is no doubt influenced by his interests in legal history, education and law and literature. In 2013 he published an article “Towards a history of mediation in New Zealand’s legal system” (2013) 24 Australasian Dispute Resolution Journal pp 86-101.

The research project

The work that Grant presented at the ALTA conference is an empirical study jointly funded by LEADR and VUW. The focus is commercial mediation. Grant chose this area of mediation because it is the only truly private mediation market in New Zealand. Other markets (such as family and employment law mediation) are controlled by the state through statutory or funding regimes. That control influences whether and how mediators, lawyers and parties engage with the process and one another.

The question that inspired part two of Grant’s four stage empirical study is whether commercial mediators are right when they perceive lawyers to be a barrier to mediation. Grant took this anecdote and his research tested it with empirical evidence. The project is being rolled out in four stages, gathering data from mediators, lawyers, parties (actual and potential) and the courts. Grant presented his findings from his survey and interviews of commercial mediators at the 2015 ‘kon gres in Auckland and presented his report to the Wellington Chapter of the Resolution Institute.

Findings from commercial lawyers

Grant’s ALTA presentation focused upon the findings from his surveys and follow up interviews of commercial lawyers in New Zealand. The report from this stage of the study was published in June 2016. He summarised his conclusions:

• Commercial lawyers know about mediation;
• Commercial lawyers are generally supportive of mediation, but on their own terms;
• Commercial lawyers do not support the idea of mandatory mediation (New Zealand courts do not have power to order litigating parties to attend mediation in commercial matters);
• Commercial lawyers have an overwhelming belief that they are contributing positively to the process and do not undermine mediation;
• Clients are believed to have limited knowledge about mediation and to rely upon their lawyers’ recommendations;
• Commercial lawyers have a gatekeeper role in relation to commercial mediation;
• The main reason for commercial lawyers recommending mediation is that they believe it is cheaper than litigation;
• Commercial lawyers have a preference for legally trained mediators with experience and reputation as lawyers (they should understand basic legal principles and how commerce works);
• Commercial lawyers report high mediation settlement rates and high overall quality of mediators; and
• Commercial lawyers are generally happy with the standard of commercial mediators in New Zealand.

By comparison, the mediators who were interviewed for the study had different views of lawyers depending upon whether they were “in demand” or struggling to find commercial mediation work. In demand mediators were generally happy with the market, whereas those struggling to secure work were unhappy.

The next stage of the research project

Part 3 of the project will involve a survey of users and potential users. The data from lawyers reveals the potential for better party knowledge about commercial mediation. At the moment, it appears that many parties only know what their lawyer has told them about commercial mediation. The user voice is of obvious significance in building a picture of the commercial mediation market.

Grant was asked how he will be recruiting clients and potential clients to participate in part 3 of his project. Recruitment of users to empirical dispute resolution research is often challenging. Grant is in the process of deciding upon the best way to engage users and plans to focus first on the in house context. In house lawyers are both lawyers and users, so this may be a useful first step in obtaining user views.

Grant will be making another presentation in relation to his project at the DR Research Forum at the National Mediation Conference on the Gold Coast on Thursday 15th September 2016.

Network member Becky Batagol recently wrote about her experience working as a research consultant for the Royal Commission into Family Violence. She makes some very interesting observations about the nature of the inquiry and the collaborative and constructive nature of the process.

You can read Becky’s reflections on the Monash University website.

Thanks for sharing your reflections Becky!

More about the outcomes of the inquiry and how dispute resolution was relevant was posted here earlier by Rachael Field.

Thank you to all the Dispute Resolution scholars who have expressed interest in participating in our Round Table in December 2016.

Our Call for Proposals closes today.

This is a reminder that 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.

If you want to join us in Hobart in December, you need to express interest in participation by today’s deadline! Email your EOI to adrresearchnetwork@gmail.com

Proposals will be assessed over the next few weeks and everyone who expressed interest in the Round Table will receive a reply by the end of June.

Paper presenters can expect to be assigned at least one chair/commentary responsibility.

By Hullwarren (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0) or GFDL (http://www.gnu.org/copyleft/fdl.html)%5D, via Wikimedia Commons

This post has been contributed by:

• Tamana Daqiq  BA.Psych, LLB, Masters in Islamic Studies, and
• Dr Helen McCue AM B.Ed, MHPEd, PhD (UNSW)

Both Tamana and Helen are Research Officers at the Law School of the University of Sydney.

Case Scenario

Mariam and her husband Abdul live in Australia and have been married for 13 years. They have three children aged between 6 and 12 years. In recent years there has been an increase in the conflict between Mariam and Abdul. Mariam is unhappy and exhausted from the conflict. She no longer wants to remain married to Abdul.  After speaking to Abdul she sees a lawyer and files an Application for Divorce in the Australian Family Court. Mariam is a practising Muslim and seeks the advice of her local Imam to obtain an Islamic divorce and resolve the issue of custody of the children.

 This scenario illustrates some of the issues that Muslim women face when they are seeking a divorce in Australia and demonstrates some aspects of the relationship between Australian family law and Islamic family law in the case of a divorce.

The Research Project

The Australian Family Law and Islamic Dispute Resolution Processes Project,  is a multi-method policy-based research project. The project, funded by the Australian Research Council and conducted by researchers from the Law Schools of Sydney University and Melbourne University, brings together expertise in family law and law and religion to examine the issue of how Australian family law should respond to Islamic community-based dispute resolution processes in relation to family law disputes.

Research Question

The project examines the question of how the Australia’s family law system can best respond to these Islamic community processes, and how, as in the case of Mariam in the above scenario, this response can support Muslim women. The project seeks to provide reliable empirical evidence for evaluating the responses to these processes and how these might support Muslim women. At its completion the project will propose, based on rigorous empirical and normative research, the best response from a liberal legal system such as Australia’s to these Islamic community processes.

Existing Literature

The literature informs us that Australia is home to a variety of cultural and religious norms, laws, practices and communities which for the Muslim community includes often informal and unenforceable community-based dispute resolution processes for dealing with family conflict. In recent years government initiatives have emerged that are designed to enhance access to the legal system’s services for people from culturally and linguistically diverse backgrounds. Despite this, little is presently known about the experiences of Muslim women who use community processes to resolve family disputes, or about how the Australian family law system might go about responding to these processes in a way that supports Muslim women. While there is a growing scholarship on the issue outside Australia, scholarship on Islamic decision-makers within Australia is limited. To date, the only relevant empirical research in Australia which documents how Australian Muslims deal with family disputes can be found in a ground breaking book by Dr Ghena Krayem titled Islamic Family Law in Australia: To Recognise or Not To Recognise published in 2014.

Research Method

This research project, Australian Family Law and Islamic Dispute Resolution Processes Project,   will be conducted in two stages. The first stage, led by Professor Helen Rhoades and Dr Ghena Krayem, involves interviews with relevant stakeholders including individual Muslim men and women and community leaders, Imams, community workers and other services providers from Islamic organisations as well as family lawyers and family dispute resolution practitioners.  The second stage, led by Professor Carolyn Evans and Dr Farrah Ahmed, will involve an analysis of the Stage 1 data to engage in a normative examination of how Australian family law should respond to Islamic community-based dispute resolution processes in relation to family law disputes.  The research results will be available through our web page.