Broad area of inquiry: What drives lawyer behaviour in dispute settlement?

Dr Olivia Rundle would love to work with some new research higher degree candidates, and applications are open this month to apply to enrol in a scholarship supported PhD or Masters by Research at the Faculty of Law, University of Tasmania.

It is well recognised that the lack of clarity about what lawyers ought to be doing in consensus based processes (as opposed to the traditional adversary system of judicial determination) can contribute to widely variable ideas about the boundaries of ethical behaviour in negotiation, mediation and other dispute resolution processes. Factors that influence lawyers’ behaviour are likely to include: lawyers’ professional identity, conceptualisation of their professional responsibilities, guidelines, client demands, time pressures, billing pressures, skills, training, and personality. Important contributions to this area of inquiry include the following (by no means an exhaustive list):

There is a need for more empirical research about the actual drivers behind lawyer behaviour in the settlement of clients’ disputes. Understanding the practitioner’s perspective would make an important contribution to the field of non-judicial dispute resolution. There is also a need for more empirical work that investigates the lawyers’ perspective of reforms that have been made in the civil justice system. Just as lawyers’ behaviour in dispute resolution is at times cause of complaint, lawyers’ behaviour in litigation is also subject to some criticism. Dr Rundle is curious about why lawyers do things the way they do.

Olivia has a strong background in researching about lawyers in dispute resolution. Her own PhD investigated the practices and perspectives of lawyers engaging in court-connected mediation at the Supreme Court of Tasmania. Since her PhD, Olivia has written extensively about the role that lawyers play in mediation, and explored in a hypothetical sense the drivers that could sit behind lawyer behaviour in dispute resolution processes. See Olivia’s profile regarding her work in the dispute resolution area on the ADR Research Network blog. Some of her key publications to date are as follows:

If you would like to explore a research question within this broad area of inquiry with Olivia, then please consider submitting an application. The application process for research higher degrees is explained on the UTAS Gradute Research Website. Olivia can be contacted at Olivia.Rundle@utas.edu.au with topic related queries. See PhD/Masters Scholarships for Hot Topics on the UTAS Faculty of Law Scholarships Page for details of the competitive scholarship process – this topic is one of three “Hot Topics” and we have a limited number of scholarships to allocate. The University will award the scholarships to the most highly ranked applicants. Olivia will not be involved in the ranking or decision making about scholarships. Applications close 31 March 2016.

Thanks to Fiona Hollier, an opportunity just came to my attention. The US based Association for Conflict Resolution (ACR) is calling for emerging researchers to submit proposals to present at their conference in October in Baltimore. The selection criteria aim to support the dissemination of interesting research that might not otherwise come to the attention of their members.

The presentation serves three primary functions: 1) to inform our membership about a topic in which they might not have engaged and/or excite them about new possibilities in the field; 2) to inspire our membership with the high quality of work being done by those preparing to enter or newly practicing in the field; 3) to give an opportunity to a number of our newest professionals to demonstrate the contribution being made by the “New Voices” in the field.

Further details are available at http://www.imis100us2.com/ACR/ACR/Education___Training/Conflict_Resolution_Training.aspx

Additional opportunity

The conference presentation will also be videoed and featured on the ACR website.  Additionally, a select number of submissions that were not selected for presentation at the conference will be invited to submit a video for the website.

Who is eligible to apply

All current or recent students in programs specializing in conflict resolution or interdisciplinary programs in which conflict studies are an integral part may apply.  Practitioners who may not have been students in certificate or degree programs but have done other forms of training and have entered the field in the last five years are also invited to apply.

If you are doing some research in an innovative space or from a unique angle, consider applying for this fantastic opportunity to disseminate your work on the international stage.

Attention all Dispute Resolution researchers

We are pleased to announce that the 2016 Australian Dispute Resolution Research Network Roundtable will be held at the University of Tasmania in Hobart in 2016.

The dates to set aside are Friday 9th December (starting in the late afternoon/early evening) until Sunday 11th December (finishing at noon). This is the beginning of school holidays in some states, so you might plan to bring your family to sunny Hobart 🙂

The Roundtable will follow the same format as in 2015:

• a focus on work in progress (ie, it’s not a conference, but a collaborative workshop around a table of supportive peers)
• a limited number of papers selected for in depth discussion
• two appointed primary commentators for each paper
• attendance is limited to people who are presenting or commentating upon papers
• a call for abstracts and expressions of interest in participating as a reviewer will be announced through this blog in 2016
• full papers must be submitted for distribution one month prior to the roundtable

Queries can be directed to the co-convenors Olivia Rundle (University of Tasmania) Olivia.Rundle@utas.edu.au or Kate Curnow (University of Queensland) k.curnow@law.uq.edu.au

In short: save the dates in your diaries and watch this space!

Enrolments are now open for a brand new offering at the University of Tasmania. The Graduate Certificate in Workplace Conflict Management is an almost fully online course aimed at anyone who manages people in a workplace. The advantage of this course is that it is specifically tailored for the workplace context. The four units are:

1. LAW555 Understanding Workplace Conflict
2. LAW556 Workplace Conflict Management Systems
3. LAW567 Supporting People in Workplace Conflict
4. LAW568 Managing and Decision Making in Workplace Conflict

We have structured the course so that students will be engaging in one unit at a time between February 2016 and November 2016. This is aimed to make it possible for people who work full time to be able to study at the same time and also complete the qualification in a one year period. The first two units are fully online, the second two are mostly online and each include one four day intensive, to be held in Sydney.

The Co-coordinators of the course are Associate Professor Samantha Hardy and Dr Olivia Rundle (both members of the Australian Dispute Resolution Research Network). Sam and Olivia have a long standing passion for conflict and dispute management education, research and training. We are both experienced in delivering quality online university courses.

Please follow the links above and here if you think this sounds interesting, and pass the news on to people you think might benefit from the course.

I just read an article by Jen De Vries called “Merit: A trump card or a card trick” and it got me thinking about the sticky business of assessing the “merits” of a dispute. This week I am placing myself in the role of an Associate Judge and assessing the oral advocacy skills of final year law students. In applying the assessment rubric I am struck by the influence of factors such as confidence, innovation, bravery, humour, or more basic human engagement in the persuasiveness of an advocate. Even though a judicial officer aims to objectively assess the merits of the legal cases presented, they are in the end human beings who may be influenced by their perceptions of the parties or advocates, previous experiences with the people or dispute, their level of hunger or comfort, their general mood or mental wellbeing, the time of day, and how bored they are feeling. I will admit that the final observation is influenced by my hearing seven lots of the same set of moot issues this week! The process of “objective” decision making is inevitably influenced by “subjective” factors, simply because decision makers are beautiful, messy, not-so-rational-as-they-think human beings.

There are seldom any rules in non-judicial dispute resolution about the basis upon which decisions ought to be made. Therefore, the “merits” of the dispute are not necessarily the driving factor in decision-making. Mediation and conciliation processes have scope to support individualised justice, in keeping with values such as responsiveness and self-determination.

In consensus based decision making the decision makers do not aspire to objectivity, as they are the parties themselves and they are expected to act out of self interest and in accordance with their personal priorities. Granted, those self interests may include being accommodating to the other party, offering the other party what they say they need, or pursuing outcomes that don’t reflect the “objective assessment of the merits” of the particular dispute in question. It is true that sometimes parties may appeal to “objective merits” when arguing that their own perspective is more valid than that of other parties. This is reflective of the fact that the concepts of “merits” and objectivity are foundational to the perception of justice.

Legal representatives will often provide a “voice of reason”, a “reality test” to counteract their client’s deficit of being “too close” to the dispute. I leave for now a radical thought questioning the perception that a person’s intimate human experience of a dispute is deficient or problematic. There is a strong assumption from the legal perspective that the “proper” way to analyse a dispute is from an objective point of view. It is in fact essential that lawyers provide a legal analysis of their client’s problem in order that the clients take that into account in deciding how they want to deal with their dispute. This is a professional responsibility, and I do not intend to challenge the idea that this is central to the legal professional service.

Third party dispute resolution professionals in consensus based processes, such as mediators and conciliators, may also form their own view about the “merits” of a dispute. Just like judges and lawyers, their assessment will be influenced by many subjective or non-merit based factors. Unlike judicial officers, they do not have the benefit of having heard evidence curated and presented according to the rules of evidence that are designed to support revelation of the objective truth. Dispute resolution practitioners ought to be mindful about how they use their own objective assessment of the merits. In particular, being wise to the non-objective factors which are likely to have influenced that assessment is quite important.

A quick search has revealed the following articles that might offer further ideas about these issues:

Lola Akin Ojelabi and Mary Anne Noone, “Ensuring access to justice in mediation within the civil justice system” (2014) 40(2) Monash University Law Review 528.

Howard Gillman, “What’s Law Got to Do with It? Judicial Behavioralists Test the “Legal Model” of Judicial Decision Making” (2001) 26 Law & Soc. Inquiry 466

Duncan Webb, “The negotiator’s ethic: fair minded self-interest” (1993) 23(4) Victoria University of Wellington Law Review 255.

I look forward to other people’s thoughts about these issues. Please contribute in the comments below.

Our final researcher profile for this month is Dr Lola Akin Ojelabi, Senior Lecturer at La Trobe Law School, La Trobe University. Lola is also an Accredited Mediator under the NMAS.

In regards to how research fits into her professional identity, Lola says:

As an academic, I have two major roles: research and higher education teaching. Research has been a major part of my work and my research informs my teaching.

Why did you become interested in the dispute resolution field?

I developed an interest in DR through my involvement in negotiation, mediation and settlement conferences as a practising lawyer for over 10 years. I was particularly interested in how the benefits of DR could be realised while still addressing social justice issues. My LLM minor thesis is on International Commercial Arbitration and PhD on Culture and Conflict Resolution.

What is your particular area of dispute resolution research interest?

My DR research interest is on justice and quality in ADR and Conflict Resolution more broadly. I am particularly interested in the extent to which codes of ethics contribute to maintenance and improvement of practice quality and assist practitioners to address justice issues that arise in ADR. I am also interested in the extent to which culture influences ADR practice and how practitioners address inequalities howsoever arising.

Whose research has influenced you? Why/How?

My research has been influenced by a number of scholars from different disciplines.

I have been influenced by the writings of legal philosophers including John Rawls. I am fascinated by his view on constructing rules for a well-ordered society from the ‘original position’. I have also been influenced by Kevin Avruch’s writings on culture, power, and identity, the correlation between diversity and inequality and how conflict resolution practitioners address the issues.

What dispute resolution research are you involved in at the moment?

My current research is on ethics in ADR with a focus on justice and quality in ADR practice. A research project conducted in Australia is now being replicated in California and the goals are to:

1. Examine similarities and differences in approaches to ethical and practice issues between US (Californian) and Australian mediators;
2. Generate discussion within the mediation sector and among policy and law makers on how best to address justice issues in mediation practice;
3. Harness the wisdom of experienced mediation practitioners on issues of justice, using different scenarios which mediators deal with in practice.

A Symposium on ADR Ethics for ADR Practitioners is scheduled to hold in Melbourne on the 19^th of June, 2015. The symposium brings together ADR academics and practitioners to discuss ethical and practice issues in ADR.

Dr Becky Batagol is a Senior Lecturer at Monash University and voluntary director of mediation and counselling organisation, FMC Victoria. Becky is an academic and her primary professional identity is as a researcher.

Why did you become interested in the dispute resolution field?
My involvement in dispute resolution was an accident. I had a contract to start my articles of clerkship at a small commercial law firm in Melbourne. Just prior to starting my job, I was bored and went out to Monash University, where I had recently finished my law degree. I saw one of my former lecturers, Professor Marcia Neave (now Chair of the Royal Commission into Family Violence in Victoria) who told me about a scholarship she was offering for a PhD in family mediation. I hadn’t studied dispute resolution or family law but wanted to do work examining gender and law. I started my doctorate and realised how important and overlooked the study of dispute resolution is, in a litigation-centric legal system.

What is your particular area of dispute resolution research interest?
That’s a hard question because so much about dispute resolution interests me. I am interested in understanding more about how to ensure that dispute resolution meets the needs of participants, provides fair solutions and protects vulnerable negotiators. These are questions about the quality and integrity of the dispute resolution process. They are important questions because our justice system is set up to help address these questions in relation to litigation, but so little has been done on a system-wide basis to address these questions in dispute resolution processes which are increasingly mandated by government.
I know the most about family dispute resolution (FDR), because that’s where I did my PhD research and in the decade since then, I have written two reports for the federal Attorney-General’s Department which have covered aspects of FDR (Family Violence and Family Law in Australia and Research on Family Support Program Family Law Services). I am on the board of a major FDR provider in Victoria, FMC Victoria.

Whose research has influenced you? Why/How?
In Australia, I have for a long time admired the work of both Hilary Astor and Rachael Field for their research integrity and for endeavouring to find high quality, theoretically informed solutions for hard problems in dispute resolution practice.
From the UK, I have long followed the writing of Dame Hazel Genn, whose more recent research advocates against dispute resolution as part of the justice system. Genn’s research reminds me that not every case should settle and to build oppotunities to opt out of dispute resolution into my policy proposals. There is a well-known US academic whose work I often come back to, Carrie Menkel-Meadow. Her perspective, in contrast to Genn’s is usually pro-mediation. I like Menkel-Meadow’s work for being thoughtful and cutting through the hype that often accompanies dispute resolution.

What dispute resolution research are you involved in at the moment?
My greatest project is raising my two children to be good people, aged 4 years and 8 months. I have been on maternity leave since July last year which has certainly slowed my current research, although there there still plenty in the pipeline.  I am about to have an article published in the Monash University Law Review with RMIT’s Dr Kathy Douglas on lawyers’ involvement in mediation at the Victorian Civil and Administrative Tribunal. Last year the second edition of my book, Non-Adversarial Justice written with Michael King, Arie Freiberg and Ross Hyams came out. I wrote the chapter on ADR and also the chapter on family law processes, which both provide a broad overview of the field. Updating these chapters gave me a birds-eye view of the field and especially of developments over the last five years. I wrote a blog post setting out my thoughts after completing the book.

Where would you like to take your dispute resolution research work over the next ten years?
As governments increasingly mandate participation in dispute resolution as a solution to budget crises in the justice system, questions around fairness, process quality, rule of law and access to justice arise. You’ll find me out and about tackling some of these big questions.

What advice do you have for emerging dispute resolution researchers?
First, I would be pretty excited to meet another researcher ready to join our small and collegiate field. Then I might suggest, over a coffee, that it is hard to go past the classic rhetoric vs reality formula for researching our field, where claims about the value of dispute resolution are often overblown. Understanding more about how people actually use dispute resolution processes contributes to a policy which improves the quality of dispute resolution process.

Associate Professor Samantha Hardy is a pracademic who works for a number of organisations in a variety of roles. She is an Associate Professor at James Cook University teaching in the Masters of Conflict Management and Resolution programme and supervising RHD students. She is also the Student Ombudsman at the University of Wollongong. She is a founder, coach and trainer at Conflict Coaching International. In addition, Sam is an adjunct at various universities in Australia, Hong Kong and the USA.

Where does research fit in your professional work?

Research for me is a form of reflective practice – research informs my practice and my practice informs my research.

Why did you become interested in the dispute resolution field?

As part of my LLM in 1997 I did a dispute resolution elective and received my Certificate 3 in Community Mediation.  As a litigation lawyer at the time, I experienced a kind of epiphany that transformed the course of my work and study since then, leading to me leaving my job as a lawyer and re-focusing on mediation and other forms of conflict support in both my practice and my research.

What is your particular area of dispute resolution research interest?

I’m interested in conflict narratives, and how the way we tell stories about conflict impacts on our capacity to manage it effectively.  I am interested in particular in how this can play out in conflict coaching.  I am particularly interested in conflict in the university context (e.g. between PhD students and their supervisors).

Whose research has influenced you? Why/How?

Jerome Bruner’s work on the narrative construction of reality is fundamental to my work on the narrative construction of conflict.  His background in psychology and particularly the psychology of learning has also had a significant impact on how I think about coaching.

Sara Cobb’s work on narrative in the area of conflict is by far the most advanced theoretical scholarship in this field, and she continues to inspire and mentor me.

What dispute resolution research are you involved with at the moment?

I’m working on research into conflict in the HDR student/supervisor relationship, and also a book on The Melodrama of Conflict (focusing on conflict narratives).

Where would you like to take your dispute resolution research work over the next ten years?

I would like to expand the quantity and quality of work in the field of conflict narratives and their impact on how people manage conflict.  I am also hoping to do more narrative analysis research into conflict in the future.

What advice do you have for emerging dispute resolution researchers?

Read widely, find something that you are passionate about, and don’t be afraid to think outside the box.  Also, if you read something that has an impact on you, write to the author and tell them – great friendships and collaborations can start in that way, and also it’s so nice for people to receive some positive feedback from a reader!

We introduce our occasional “DR Researcher Profile” with Associate Professor Jonathan Crowe, of the University of Queensland.

Jonathan is primarily an Academic  and his profile can be found here. Research is his main professional focus. Here are his answers to some questions about his DR research interests.

Why did you become interested in the dispute resolution field?

My research is mainly in legal philosophy – particularly the relationship between law and ethics. I first became interested in dispute resolution through working with Associate Professor Rachael Field. I was doing some work on the concept of government neutrality and Rachael mentioned that she was researching related issues concerning neutrality in mediation. We wrote an article together exploring this topic and I’ve been more and more interested since then in ADR and mediation, especially its ethical dimensions.

What is your particular area of dispute resolution research interest?

My main focus is on the ethics of mediation – both the issues faced by mediators in practice and also the  broader ethical issues raised by mediation as a form of dispute resolution. What makes mediation legitimate as a way of resolving disputes? What are its ethical advantages and disadvantages compared to other dispute resolution processes? How can mediators address the power imbalances that sometimes arise between the parties?

Whose research has influenced you? Why/How?

I have been influenced by feminist writing on mediation and family law – for example, the work of Carol Smart and Carole Pateman on gender and the family. I’ve also been influenced by broader philosophical theories on the authority and legitimacy of legal processes, including authors like Joseph Raz, Lon Fuller and Ronald Dworkin.

What dispute resolution research are you involved in at the moment?

Rachael Field and I are currently co-authoring a book, tentatively entitled After Neutrality: A New Theory of Mediation Ethics. The notion of mediator neutrality has been widely critiqued as a basis for mediation ethics, so this raises the question of what alternative ideas or principles might replace it. Our take on this issue combines a focus on party self-determination with a view of ethical principles and guidelines as arising organically from the mediation process.

Where would you like to take your dispute resolution research work over the next ten years?

The idea of mediation as a profession raises a lot of interesting directions for future research. What exactly does the concept of a ‘profession’ mean in this context? Does the notion of a profession suggest a particular picture of the mediation community? What would this mean for the way mediators share ideas and values (through practice guidelines, accreditation processes, professional networks and the like)?

What advice do you have for emerging dispute resolution researchers?

I have found dispute resolution scholars to be consistently collegial, welcoming and open to sharing ideas and practices (especially my valued colleagues in the ADR Research Network!) It is a field with many interesting ideas and questions awaiting exploration. I would encourage new scholars to talk widely to more experienced researchers and practitioners – and to be open to the potential insights of interdisciplinary approaches.

Bobette Wolski‘s recent article in the UNSWLJ makes a valuable contribution to understanding lawyer behaviour in mediation. The article examines lawyers’ obligations in mediation, with reference to the “law of lawyering” – (binding) rules of professional conduct. The way that these are applied (or likely to be evaluated) are also affected by (non-binding) guidelines for lawyers’ behaviour in mediation. Lawyers owe a primary duty to the court/administration of justice, but they are not neutral or impartial between the parties to a dispute. They are partisan service providers to their clients, often in the role of representative or advocate and always in the role of advice giver.The ethical duties to the client are trumped only by the duty to the court. Bobette Wolski looks at how lawyers’ duty to do their work for their client translates into the mediation context.

The focus of the article is on minimum standards that lawyers must meet, as opposed to recommendations for “best practice” or “most effective” strategies in mediation (although in one section the tasks that a lawyer should perform in mediation are unpacked, drawing on a variety of literature). The analysis of professional standards provides an essential background to the development of recommendations about optimal mediation strategy. The analysis also necessarily relies upon the “law of lawyering” set in time. It may be that further common law and/or statutory developments will clarify some of the grey areas that Wolski has grappled with. These include:

• When a duty is owed to “mediation” (where “court” is defined to include “mediation”), to who or what is that duty owed?
• How should the duties of fairness and courtesy be applied in the mediation context?
• Given strong judicial and statutory support for concepts such as “good faith” and “cooperation”, how might lawyers’ obligations to participate in these ways in mediation be interpreted?

A particularly important aspect of Bobette Wolski’s article is her critical examination of commentary about concepts such as “adversarial advocacy”, “zeal”, “advocates”, and “non-adversarial” within mediation (we have explored similar definitions in a previous post). She notes the ongoing challenges of lack of clarity of terms and fragile distinctions, as well as the cavern between idealisation of mediation in literature and training on the one hand, and mediation practice on the other. Meanings matter, and a significant challenge in guiding lawyers’ behaviour in mediation is clarifying the meaning of terms used. Bobette Wolski recommends reconsideration and clarification of terms such as “advocacy”, “adversarial conduct” and “non-adversarial manner” in guidelines for lawyer behaviour in mediation, because of tension between some interpretations of these concepts and the law of lawyering. Her critique of commonly used phrases provides food for thought for the language that we choose, and how we clarify our meaning, in practice, teaching and research.

The article ends with a challenging (and dare I say exciting!) list of suggestions for further research. Perhaps there are some opportunities to collaborate on one or more of these “gaps” in knowledge about lawyers in mediation.