Author Archives: Dr Oz Susler

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About Dr Oz Susler

Dr Oz Susler, Senior Lecturer, Faculty of Law, La Trobe University I am an academic in the Law School at La Trobe University where I teach and research in ADR and contract law. I have qualifications in arts, education and law from the University of Melbourne and La Trobe University. My life as an academic began by coaching students for the Willem C. Vis International Commercial Arbitration Moot, alongside working as a solicitor in commercial practice. Once I realised how much I enjoyed coaching and teaching, I applied for an academic position at La Trobe and the rest as they say, is history. I have been passionate about coaching tomorrow's lawyers in developing ADR skills through both my teaching and coaching of students for various ADR moots such as the ICC International Commercial Mediation Competition. I completed my Doctorate in international ADR at La Trobe University and enjoy sharing my knowledge gained through my research with students in the Juris Doctor and Undergraduate Law Programmes, colleagues and the broader ADR community. My interest in ADR was ignited when I enrolled in a Master of Laws subject on International Commercial Arbitration taught by Louise Barrington. This was followed by my completion of the course for the Diploma in International Commercial Arbitration taught by the Chartered Institute of Arbitrators. I also became an accredited AMDRAS mediator in 2020. Research Areas My research has been primarily focused on international commercial arbitration and more recently I have taken an interest in mediation. In particular, I developed an interest in how neurodivergent individuals experience ADR processes such as mediation and how ADR processes can adapt to better accommodate Autistic persons. I feel passionate about improving access to justice for Autistic persons, also considering that any improvements for one group of neurodivergent individuals can have a flow-on effect for other types of neurodivergent persons who are generally disadvantaged in ADR processes. My forthcoming article is based on my qualitative case study on how Autistic persons experience mediation. This pilot study opened my eyes not only the lack of research in this area but, also to the extent of disadvantage that Autistic people experience in mediations due to their different ways of communication vis-à-vis neurotypical people. I hope to continue to work in this space and facilitate the processes and training of ADR professionals to foster better access to justice in ADR processes.

Writing Off “Difficult” Parties? Five Ways to Set Boundaries While Being Inclusive

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Dr Oz Susler & Dan Berstein

In conflicts, there are times when one party gives up on connecting with another party and begins to dehumanise them. As ADR practitioners, one of our responsibilities is to prevent that from happening, and yet there are still times we may even find ourselves so distressed that we end up writing a person off too.

In a sense it is natural, as human beings to mentally separate ourselves when we encounter someone who seems different, unfamiliar, or atypical and to become guarded when a person challenges us. We all have biases. But that is something we must be conscious of and guard against as ADR professionals – whether we are in the role of mediator, arbitrator, ombuds, or any other type of dispute resolver.

In this article, we demonstrate the pervasive and impactful attitudes that unfortunately can lead practitioners to have biases against those who may have mental health differences – and we share tools to prevent parties from being written off.

We begin by presenting some dispute resolution guidance circulating in Australia that teaches professionals to see someone who seems to have a possible mental impairment as a “difficult” or “high conflict” hazard to handle, avoid, or engage with using a different style of mediation than we might normally pursue.  We conclude with resources to help practitioners prevent and address this problem of parties being written off.

Australian Guidance to Write People Off As “High Conflict”

In the Australian ADR literature, there are instances where people regarded as having mental disorders and related impairments have been inappropriately deemed to be “difficult people” or “high conflict people” and unfit to receive normal mediation. 

This phenomenon, where well-meaning mediators use proxy labels to suggest that people with mental impairments need to be treated differently (often with briefer or more restricted communication), is sadly somewhat common.  It has been well-documented as problematic, including in Ending the Epidemic of Accidental Personality Disorder Discrimination by Well-Meaning Mediators.1

Below is an overview of some examples in the Australian discourse where these ideas have been spreading (note that much of this guidance is bundled with de-escalation interventions or communication ideas to have some kind of different process for including so-called “high conflict people” but this well-meaning paternalism is often still based on the stigmatizing assumption that these people are not reachable for normal communication).

Also, we note that we present the below five lessons from this guidance as a criticism, and we do not recommend people make guesses about who may be living with a mental impairment or profile those people for different treatment. What you should not do:

1: Try to guess who has a personality disorder or related disabling mental impairment

Resolution Institute provided a 2023 training to “identify five personality types” which are derived from clinical mental disorders as part of the “New Ways for Mediation” model that teaches a different type of mediation which avoids some of the aspects of mediation normally available to parties.2

2: Assume that any issue from the person is due to their impairments and not a legitimate issue

The Council of Australian Tribunals (COAT) Resource Library has a 2022 resource posted in their Resource Library, called “Working Effectively with High Conflict People.”3 Again, there is a focus on personality disorders including a chart of “5 High Conflict Personality Types” listing narcissistic, borderline, histrionic, antisocial, and paranoid (which are 5 clinical personality disorder diagnoses).  The resource includes a mantra for dismissing the so-called “high conflict person’s” complaints and focusing instead on writing them off with the idea that any problems are due to their presumed-to-be mentally impaired personality: “The issue’s not the issue. The personality’s the issue.” 

3: Have briefer communication with someone you believe might have a “high conflict” mental impairment

The State Government of Victoria State Services Authority provided a 2011 guidance document called “Dealing with High Conflict Behaviours”4 that discusses “working with a difficult person,” “identifying high conflict applicants,” and “keep[ing] encounters with a difficult person brief” – concluding that “you want to close the conversation and remove yourself from their presence.”

QLS Proctor has a 2020 post, “Addressing high-conflict personalities” recommending people try responding to the “HCP” (high conflict person)” using a BIFF method to give briefer communication.5

4: Try to avoid dealing with someone whom you believe is a “difficult” or “high conflict” person

The Family Law Section, Law Council of Australia posted a 2024 article on LinkedIn called “Dealing with Difficult People and Behaviors”6 which includes several strategies.  The first is: “Strategy 1 – Don’t deal with them. Identify them early on and decide if you need and want to deal with them.”  This comes after the article introduces four personality disorders as being related to being a so-called difficult person, saying “Difficult people or high conflict people tend to have one or more of four types of Cluster B personality disorders.”

Shepherds Family Law and Mediation Specialists says the “HCPs” will never change and urges readers to consider whether they actually want or need to work with them: “Personalities form by age 5 or 6, and then remain stable through life. Whilst individuals can modify their adult personalities, it takes great effort and generally requires professional assistance. HCPs lack insight and willingness to do so. You will therefore not change the HCP – do not try to do so. Instead, consider how you can work with them. Alternatively, consider whether you actually want to or need to work with them.”7

5: Assume the person cannot ever change and you should forget about even discussing their emotions because they are not normal with their emotions

The Divorce and Separation Hub has a 2022 post, “Are you negotiating a ‘High Conflict’ personality?” that explores those same 5 mental disorder-inspired personality types and writes, “It can be difficult to admit it, but there’s ultimately no way to resolve a ‘High Conflict’ situation with logic or persuasion. You will experience chaos, stress and confusion, while the High Conflict Individual will simply play out their life patterns. Others have tried to change them, without success, leaving a trail of frustration and disappointment.”8 It suggests one should take “the ‘forget about it’ approach” and forget about “discussions of emotions” due to the presumption that so-called “high conflict people” don’t experience normal emotional processes and will instead “carry around a feeling of being helpless, vulnerable, weak and like a victim-in-life.”

Approaches like the ones above, teaching practitioners how to identify people as potentially having a disabling mental impairment, perhaps fitting the five personality disorder categories often explicitly being described in discussions of “high conflict personalities” – and teaching how to target these people, specifically, with different interventions based on those private working theories – have also been taught at some Australian universities.9

How Can We Set Boundaries Without Writing Parties Off?

Corresponding to each of the five ideas above, we present a corresponding list of five alternative suggestions below that we hope you will consider, instead of writing parties off by assuming they are too “difficult” or “high conflict.”  We also include resources to assist you to adopt this trauma-informed and procedurally fair approach. What you should do:

1:  Provide trauma-informed accessibility options to all parties without asking them to disclose their disabilities or trying to guess them

Dispute resolution professionals can present a menu of accessibility options to all parties as part of their intake and process – they can trust the parties to ask for whatever accommodations they might need, ideally without forcing anyone to disclose a disability, because mediation is a process where mediators aim to accommodate everyone.  Likewise, trauma-informed practices help us realize that all parties may have experienced different traumas with different, personal trauma responses.  We can endeavour to provide a safe, empowering space for them using trauma-informed approaches, which do not require that we make any guesses about their circumstances or compel their disclosure.

To access some free resources that provide tools anyone can use to practice more accessibly using universal design principles, or to become trauma-informed, visit www.biasresistantcourts.org. This is part of a project funded by the American Arbitration Association – International Centre for Dispute Resolution (AAA-ICDR) Foundation and produced by the CUNY Dispute Resolution Center.

2:  Listen to people and honour their self-determination

Like anyone else, practitioners have their own biases and values, but the key is to prevent any personal ideas regarding a party from getting in the way of achieving a fair and impartial process for all.  Instead of labelling people based on their mental health and their behaviours and profiling them for different treatment, we should endeavour to give all parties choices about how they choose to have the process proceed – and avoid any negative stereotypes and potential discrimination against parties. All parties should be given accessible options for how to engage in the process instead of facing practitioners who make judgments about them and take those decisions away from them.  Any changes from the practitioner should be based on impartial standards that are followed with all parties, as opposed to singling out those perceived as “difficult” for different treatment.

3:  Be equally available as a communicator to all parties

Instead of writing people off as “difficult” or “high conflict” people when we are distressed or irritated, it is better to have real plans for challenging behaviours. Just like anyone who lives in a fire-prone area must have a fire plan, mediators should have a behaviour contingency plan to address such issues in a mediation. Two of the cornerstone values of mediation are to offer a process that is fair and impartial. The same two values are arguably the most fundamental reasons for developing a behaviour plan. To attain such fairness and impartiality, it is essential to restrain the mediator’s decisions made in the moment and instead, defer to a set of behavioural criteria which were established prior to commencing the mediation process.10 A well-drafted behaviour plan should be clear and based on objective evidence. Such a plan should include guidance on how to address problematic behaviours with relevant reflective questions.  Another strategy is to assess the said behaviour based on universal criteria. This includes asking what the general criteria is for when this specific type of behaviour is a problem (instead of singling out people or their personalities as the problem).11

Some resources for making a behaviour plan are available at www.biasresistantcourts.org and as part of the paper, Ending the Epidemic of Accidental Personality Disorder Discrimination by Well-Meaning Mediators, accessible at https://scholarship.law.missouri.edu/jdr/vol2024/iss1/5/

4:  Never screen out parties based on guesses or knowledge that they may have a mental impairment

If you have to decline service to anyone, ensure it is not based on guesses they have some kind of impairment like the so-called “high conflict” mental impairments described above – and that it is not based on race, sexual orientation or any other protected identity characteristic.  Avoid declining service to anyone and – if you must – use consistent, behaviour-based protocols.

5:  Refrain from writing someone off as unchangeable or not worth discussing emotions with

It is important, as a practitioner, to keep an open mind about how one ensures the process is inclusive of all parties –and to also model this when one party writes another off.  Practitioners should ideally, as part of their process, encourage the party who wrote another off to explain/explore why they did so and – if possible – engage in a dialogue with the party they wrote off.  The aim for the practitioner is to help the parties understand one another’s behaviours, to improve the communication between the parties, and encourage them to connect instead of writing each other off.

Parties may still write one another off based on their own biases, but the hope is that the ADR practitioner’s process will provide some support and clarity to assist parties to see that the practitioner, at least, modeled inclusivity and transparency and demonstrated consistent open-minded responses to challenging behaviours (while also having clear, consistent boundaries).

Conclusion

Challenging behaviour can be so distressing that it often becomes tempting to assume some people are, themselves, the culprit and place them in a different category.  Instead of writing anyone off, dispute resolution professionals can rely on consistent, impartial approaches that are accessible and empowering for all parties.

Additional resources for managing practitioner distress and planning for challenging behaviors can be accessed from the Demystifying Distress program co-sponsored by the Mental Health Safe Project, Mediate.com, the Association for Conflict Resolution (ACR), the Academy for Professional Family Mediators (APFM), the National Association for Community Mediation (NAFCM), and the International Institute for Conflict Prevention & Resolution (CPR). It is viewable at https://mediate.com/demystifying-distress

Author Biography

Dr Özlem Sűsler is a graduate of the University of Melbourne and La Trobe University. She holds degrees in Arts, Education and Law and has been admitted as a Barrister and Solicitor of the Supreme Court of Victoria.

Özlem is a senior lecturer at La Trobe University, School of Law, where she coordinates and teaches ADR and Contract Law in the JD and LLB programmes. She is the immediate past director of the JD Programme. Dr Susler has researched and published internationally on ADR in the fields of international commercial arbitration and the scholarship of learning and teaching. More recently she has conducted qualitative research into the experience of Autistic persons engaging in ADR processes (publication forthcoming). Dr Susler has also played a key role in coaching La Trobe Law students in various ADR Mooting competitions. She is a graduate of the Chartered Institute of Arbitrators, the Australian Institute of Company Directors and an AMDRAS accredited mediator.

Dan Berstein is a mediator living with bipolar disorder who uses conflict resolution best practices to promote empowering mental health communication and prevent mental illness discrimination.  His company, MH Mediate, has helped thousands of professionals and organizations be empowering, accessible, and non-discriminatory toward people with disclosed or suspected mental health problems.  Dan holds degrees from the Johns Hopkins School of Public Health and the Wharton School.  He is the author of the 2022 book, Mental Health and Conflicts: A Handbook for Empowerment.

  1. Berstein, D., Diamond, H., & Yanos, P. T. (2024). Ending the Epidemic of Accidental Personality Disorder Discrimination by Well-Meaning Mediators. J. Disp. Resol., 1; See also Hardy, Samantha (2023). CRITICAL REFLECTION: High Conflict Personalities. Retrieved from https://www.linkedin.com/posts/samantha-hardy-3695b97a_critical-reflection-high-conflict-personalities-activity-7116897553840832513-VTHx/ ↩︎
  2. Resolution Institute (2023). New Ways for Mediation A Breakthrough Approach for Managing High Conflict Disputes. Retrieved from: https://resolution.institute/eventdetail?eventkey=bewau22923. Teaching “managing high conflict individuals” with a “new approach to mediating their disputes“ – an approach “based on Bill’s book Mediating High Conflict Disputes”: Chapter 1 of this book, “Understanding High Conflict Personalities,” says “People with high conflict personalities often have personality disorders” and Chapter 3, “The Four Fuhgeddaboudits (What NOT to Do),” teaches practitioners to avoid certain things with so-called high conflict people regarded as having high conflict personalities. ↩︎
  3. Council of Australasian Tribunals (2022).  Working Effectively With High Conflict People. Retrieved from https://coat.asn.au/resources-library/?fwp_resources_search=working%20effectively%20with%20high%20conflict%20people ↩︎
  4. State Government of Victoria State Services Authority (2011).  Dealing With High Conflict Behaviours.  Retrieved from https://vpsc.vic.gov.au/wp-content/uploads/2015/03/Dealing-with-High-Conflict-Behaviours-WEB.pdf ↩︎
  5. Queensland Law Society (2020). De-escalation techniques: Addressing high-conflict personalities (part 1).  Retrieved from https://www.qlsproctor.com.au/2020/11/de-escalation-techniques-to-address-high-conflict-personalities/ ↩︎
  6. Australian Family Lawyer (2024). Dealing With Difficult People And Behaviours. Retrieved from https://www.linkedin.com/posts/fls-family-law-section_afl-highlight-accredited-family-law-specialist-activity-7242013602914713601-3-dx?utm_source=share&utm_medium=member_desktop; Reposted from https://www.shepherdsfamilylaw.com.au/site2018/wp-content/uploads/2024/08/Dealing-with-difficult-people-3.pdf and also reposted at https://ramsdenfamilylaw.com.au/strategies-for-dealing-with-difficult-people-in-family-law-proceedings/ ↩︎
  7. Shepherds Family Law. Working Effectively With High Conflict People.  Retrieved from http://www.shepherdsfamilylaw.com.au/working-with-high-conflict-people/ ↩︎
  8. Divorce and Separation Hub (2022). Are you negotiating a ‘High Conflict’ personality? Retrieved from https://www.divorceandseparationhub.com/2022/07/15/bill-eddy-high-conflict-institute/ ↩︎
  9. See e.g. The University of Newcastle, Australia. High Conflict in Law. Retrieved from https://www.newcastle.edu.au/study/online-learning/high-conflict-in-law-personality-disorders-disputes/about-this-course/content; Monash University. LAW7485 – Managing high conflict personalities in legal disputes. Retrieved from https://www3.monash.edu/pubs/2014handbooks/units/LAW7485.html. ↩︎
  10. Berstein, D, (2022) ‘Mental Health and Conflicts: A Handbook for Empowerment’ ABA, 153. ↩︎
  11. Berstein, D, (2022) ‘Mental Health and Conflicts: A Handbook for Empowerment’ ABA, 158. ↩︎

The Role of Intermediaries in Enhancing Access to Justice in ADR

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Dr Oz Susler & Dr John Taggart

Introduction

Over the past thirty years, there has been a ‘sea change’ in the treatment of vulnerable court and tribunal users in the United Kingdom. As noted by Lady Justice Hallett in the case of R v Lubemba: ‘Advocates must adapt to the witness, not the other way round.’ Formal rules now place a duty on judges in both civil and criminal cases to ensure that ‘every reasonable step’ is taken to facilitate the participation of witnesses in proceedings.

Emblematic of this culture shift has been the introduction of a new role known as the ‘intermediary’. The intermediary, a communication specialist, is one of a range of ‘special measures’ which were introduced in 1999 through the Youth Justice and Criminal Evidence Act (YJCEA) to improve the quality of evidence available to a court and reduce the stress associated with the justice process. The function of the intermediary is to communicate ‘questions put to the witness ’and ‘to any person asking such questions, the answers given by the witness in reply to them’. As well as assisting witnesses to give evidence in court, intermediaries also advise lawyers and judges on how best to communicate with the witness more broadly.

Background

In England and Wales, the first cohort of intermediaries was introduced in 2004 through what has become known as the ‘Witness Intermediary Scheme’ (WIS) which is run by the Ministry of Justice (MOJ). The WIS matches the vulnerable witness with an intermediary based on their communication needs. The majority of intermediaries operating in England and Wales are speech and language therapists; however, there has been an increase in numbers from other backgrounds, such as teaching, nursing, social work, psychology, and occupational therapy.

In Northern Ireland, a slightly different intermediary scheme operates compared to England and Wales. In 2013, the Department of Justice of Northern Ireland (DOJ) developed a model for the provision of intermediaries in the criminal justice system. This was based on the provisions of the Criminal Evidence (NI) Order 1999, which effectively mirror the provisions of the YJCEA. In Northern Ireland, intermediaries are all trained, registered, and regulated by the DOJ. As in England and Wales, the vast majority of those on the Registered Intermediary Scheme (RIS) register are speech and language therapists, with a number coming from a social work background. A crucial distinction between the intermediary schemes in England, Wales and Northern Ireland is that in the latter, both witnesses and defendants can access the services of registered intermediaries. The DOJ concluded that respect for the principle of ‘equality of arms’ demanded that all vulnerable individuals should be eligible for intermediary assistance.

Beyond Criminal Courts

The special measures regime in both England, Wales and Northern Ireland were originally intended to apply solely to criminal proceedings. However, requests began to be made for intermediary assistance in other justice fora, such as family courts and employment tribunals. Intermediaries now commonly assist vulnerable individuals in these settings in both jurisdictions. In a recent case in England and Wales, the High Court noted how the fundamental role of the intermediary in family courts and criminal courts is the same.1 As intermediaries have become more commonplace in criminal courts and family courts, relevant guidance has been developed to regulate the scope of their role in court. For example, in 2016, Mr Justice Charles, the Vice President of the Court of Protection in England and Wales published practical guidance entitled ‘Facilitating participation of ‘P’ and vulnerable persons in Court of Protection proceedings’. Another significant development in Great Britain has been the introduction of Practice Direction 1A, which also highlights the intermediary role in assisting vulnerable individuals to participate. In Northern Ireland, Practice Direction No.2/2019 contains detailed guidance on the intermediary role in criminal proceedings. Despite intermediaries regularly attending family court hearings, no equivalent guidance for civil courts has been issued.

Challenges

The intermediary role has played a significant part in the move towards promoting ‘best evidence’ and accommodating the needs of vulnerable individuals in court. In this regard, the role has been ‘little short of revolutionary’. The Victims’ Commissioner in England and Wales recently described it as ‘the single biggest improvement in the criminal justice system over the last thirty years’. While the intermediary role is becoming further embedded into justice processes, the role has encountered several challenges. Here are a few of the most important ones:

Duration of Appointment

Ultimately, the duration of an intermediary’s appointment is at the discretion of the court. The court may allow for an intermediary to assist the vulnerable individual for the period of oral evidence or for the entire court proceedings (or possibly for something in between). Understandably, the role of a defendant in a criminal trial is different from a witness so the length of time communication assistance will be required can vary. For example, a defendant will have legal conferences with their lawyers throughout a trial whereas a witness will not. The relevant Practice Direction in Northern Ireland states that the intermediary role is restricted to the period of oral testimony while in England and Wales, a court may exercise its powers to appoint an intermediary for longer. Again, this is at the discretion of the judge. Certain commercial providers of intermediaries, such as Communicourt, strongly argue that communication as a concept is broad and that providing intermediary assistance only for the period of evidence is superficial. The counterargument to this point is that with limited resources, intermediaries should be appointed where they are most needed.

Neutrality

As a relatively new actor to the justice system, the scope of the intermediary role has been contested. One key aspect of the role is that intermediaries operate as officers of the court and, as such, are impartial. How intermediaries operate to facilitate communication and remain impartial is a question that warrants attention. For example, if an intermediary assisting an extremely emotional witness feels that reassuring them might help them and reduce anxiety, is this breaching their impartiality? One anecdotal example from Northern Ireland involved an intermediary putting their arm around a young witness in court to comfort them. It was ultimately held by the judge that this ‘crossed the line’ and the intermediary’s involvement in the case ceased. Regardless of the venue, consideration should be given to how intermediaries can be enabled to carry out their primary role of facilitating communication and be viewed as impartial.

Skills and Qualifications

As discussed above, the majority of intermediaries in both England, Wales and Northern Ireland come from a background in speech and language therapy or social work. The MOJ in England and Wales has tried in recent years to diversify the registered intermediary cohort. In terms of the ‘matching’ of intermediaries to vulnerable individuals based on the nature of the communication issue, it is preferable that there is a wide pool of background and skillsets. For example, some intermediaries work exclusively with young children while others work with the elderly or with people diagnosed with autism spectrum disorder2 or an intellectual disability. Ultimately, a court or tribunal appointing an intermediary should have the confidence that the intermediary has the requisite skillset to facilitate communication and provide clear, practical advice to the legal professionals. Although increasingly rare in practice, some courts have permitted lawyers to effectively cross-examine the intermediary about their experience and suitability for the role. It is suggested such a practice could underline the legitimacy of the role as well as the matching process undertaken by the DOJ or MOJ which have recruited, trained and ‘matched’ the intermediary to the vulnerable individual.

Intermediaries in Australia: Scope and Application

Following on from England, Wales and Northern Ireland, New South Wales was the first Australian jurisdiction to pass legislation for intermediaries in 2015.3 Currently, intermediaries are used within the criminal justice system in Tasmania, Queensland, South Australia4, New South Wales, Victoria5 and the Australian Capital Territory.6 Intermediaries are primarily used to assist vulnerable witnesses including children to give evidence for sexual offences and homicide cases.7 In the Victorian and ACT programmes, in addition to young people, any adult with a mental illness, intellectual disability, dementia or brain injury may be eligible to have an intermediary assist them in giving evidence in a police interview or court for particular criminal matter hearings.8 The reality is that vulnerable individuals experience barriers in access to justice not only in the criminal justice system, but, also in other areas that are connected to the broader legal system, including the civil justice system and court ordered Appropriate Dispute Resolution (ADR). In Australia, ADR processes are highly integrated in the legal system, thus many courts refer parties to participate in an ADR process. In many jurisdictions  attempting to participate in the ADR process may be a prerequisite to the matter proceeding to a hearing before the court.9

Potential Applications of the Intermediary in the Australian Civil Legal System

It can be argued that particular individuals who are identified as more likely to encounter greater barriers in access to justice than the general population, such as Autistic persons, or otherwise neurodivergent individuals, those living with a mental health condition or other neurological/intellectual disabilities, stand to benefit from an intermediary programme that is available in court ordered or legislation-based ADR processes.  Although it is recognised that ADR processes can be varied, this post focuses on the needs of Autistic persons who are subject to court ordered mediation.  While there is no research focused specifically on access to justice for Autistic people, there is significant research in relation to access to justice for people with disabilities.10 The Australian Law Reform Commission’s report11 details issues that may commonly arise when people with disabilities seek access to justice which include ‘communication barriers’ and ‘issues associated with giving instructions to legal representatives and capacity to participate in litigation’. The Report also discusses the issue of capacity to make decisions in their own best interest and in particular, the need for support in Decision-Making.12 Legal reform is likely to have limited practical impact if people do not have access to the support necessary to enable them to participate in legal processes.13 It is at this juncture that intermediaries have the opportunity to play an important role in supporting such individuals who participate in court ordered mediations, hence fostering greater access to justice.

Autistic people communicate differently to non-Autistic people. Further, Autistic people may misinterpret communication by others and may be misinterpreted in their own communication.14 This may give rise to challenges in access to justice in ADR contexts, particularly in mediation which is based on communication between the parties facilitated by a mediator. To fulfil the aims of the International Principles and Guidelines on Access to Justice for Persons with Disabilities,15 Autistic parties engaging in court-ordered ADR processes should have access to an intermediary for support if necessary. A pilot programme may be trialled where intermediaries are made available for court ordered16 family dispute resolution (FDR) mediations, based on clear eligibility criteria. Given the role of the intermediary is to facilitate communication and communication challenges being one of the most commonly challenging aspects of mediation for Autistic persons, this presents a valuable opportunity for Australia to lead other courts and extend the role of the intermediary into a new realm. Drawing on the experiences of England, Wales and Northern Ireland, Australia stands to benefit in taking part in such a significant step towards improving access to justice in ADR for vulnerable individuals, who often experience disadvantage as parties in ADR processes.17

Author Biography

Dr Özlem Sűsler is a graduate of the University of Melbourne and La Trobe University. She holds degrees in Arts, Education and Law and has been admitted as a Barrister and Solicitor of the Supreme Court of Victoria.

Özlem is a senior lecturer at La Trobe University, School of Law, where she coordinates and teaches ADR and Contract Law in the JD and LLB programmes. She is the immediate past director of the JD Programme. Dr Susler has researched and published internationally on ADR in the fields of international commercial arbitration and the scholarship of learning and teaching. More recently she has conducted qualitative research into the experience of Autistic persons engaging in ADR processes (publication forthcoming). Dr Susler has also played a key role in coaching La Trobe Law students in various ADR Mooting competitions. She is a graduate of the Chartered Institute of Arbitrators, the Australian Institute of Company Directors and an AMDRAS accredited mediator.

Dr John Taggart is a Lecturer in Law at Queens’ University, Belfast and the Director of the Institute of Criminology and Criminal Justice (ICCJ). He holds a PhD in Law from the London School of Economics (LSE) and is a member of the Inn of Court of Northern Ireland and a member of Lincoln’s Inn. John’s research focuses on the criminal process, criminal justice and socio-legal approaches to criminal law. John’s research looks at special measures in criminal courts and the role of the intermediary as a communication specialist for vulnerable court users. He has recently worked as an academic consultant to the Australian Capital Territory (ACT) Human Rights Commission and as a legal trainer to the Northern Ireland Department of Justice. John has published widely in publications including the Criminal Law Review, International Journal of Evidence and Proof, International Journal of Law in Context and the Journal of Law and Society.

  1. West Northamptonshire Council (acting via Northamptonshire Children’s Trust) v KA (Mother & Anor) (Intermediaries) [2024] EWHC 79 [43].
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  2. Autism Spectrum Disorder is referred to as ‘autism’ hereafter.  The term ‘autism’ throughout this paper intends to refer to individuals with a diagnosis of autism and no co-occurring intellectual disability. This article uses identity-first language (e.g., ‘Autistic person’) because many autistic people prefer it (Bury et al., 2020; Kenny et al., 2016), and it is considered less discriminatory (Bottema-Beutel et al., 2021).
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  3. See Criminal Procedure Amendment (Child Sexual Offence) Evidence Pilot Act 2015 (NSW).
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  4. South Australia provides a communication assistance scheme. See Evidence Act 1929 (SA) and Summary Offences Regulations 2016 (SA).
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  5. New South Wales introduced an intermediary programme in 2016 and Victoria in 2018.
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  6. Evidence (Miscellaneous Provisions) Amendment Act 2019 (ACT).
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  7. See eg <https://www.justice.vic.gov.au/justice-system/courts-and-tribunals/intermediary-program/about-the-intermediary-program#program-history>.
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  8. See eg <https://www.justice.vic.gov.au/justice-system/courts-and-tribunals/intermediary-program/about-the-intermediary-program#program-history>. In Victoria the criminal matters are restricted to witnesses in homicide matters and victims of sexual abuse.
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  9. For example. the Federal and Family Circuit Court of Australia generally makes it mandatory (unless exceptions apply) for the parties to be referred to Family Dispute Resolution under s.13C(1)(b) of the Family Law Act 1975 (Cth) to attempt to resolve their disputes.
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  10. See, eg, ‘The Justice Project’ Final Report, Part 1 ‘People with Disability’ (August 2018) Law Council of Australia <https://lawcouncil.au/justice-project/final-report>.
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  11. Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws – Final Report, August 2014 available at <https://www.alrc.gov.au/publication/equality-capacity-and-disability-in-commonwealth-laws-alrc-report-124/>.
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  12. Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws (Final Report, August 2014) p 4. (Access to justice issues | ALRC).
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  13. Ibid p 7.
    ↩︎
  14. See eg, Maya Albin, Isabella Chawrun, and Ami Tint, “Rethinking Social Communication Support: Exploring Communication Partner Training for Autistic Adults and Their Neurotypical Communication Partners” (2024) Autism in Adulthood <https://doi.org/10.1089/aut.2023.0>
    ↩︎
  15. ‘International Principles and Guidelines on Access to Justice for Persons with Disabilities’ (2020) United Nations Special Rapporteur on the Rights of Persons with Disabilities. Hereinafter referred to as ‘Guidelines’.
    ↩︎
  16. This programme would be implemented through the Australian Family and Federal Circuit Courts.
    ↩︎
  17. Forthcoming qualitative research article on the disadvantage experienced by Autistic adults who participated as a party to mediation is available upon request from Dr Ozlem Susler.
    ↩︎

ADR in Australian Legal Education

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Alperhan Babacan and Oz Susler

Dr. Alperhan Babacan holds Honours degrees in Law and Political Science, a PhD and a Graduate Certificate in Tertiary Teaching in Learning. Dr Babacan is admitted as a Barrister and Solicitor of the Supreme Court of Victoria and High Court of Australia and has extensive experience in legal practice and legal education. In academia, Dr Babacan has held various senior positions including as Chair of Criminology at Navitas, deputy head of School at Swinburne university and as Director of the Juris Doctor program at RMIT University. Dr Babacan has extensive experience in unit and course development, accreditation and review. He has published very widely in areas of law, criminology and teaching and learning in the higher education sector with a specific focus on the scholarship of learning in legal education.

Much has been written about the benefits of ADR in legal education across the globe and in Australia.  Various reports over the last forty years have criticised the emphasis placed on  traditional Australian legal education – on the teaching of legal rules and doctrine and the focus on analysis and synthesis of these rules, coupled with the adversarial approach to legal education in the absence of skills training. The common thread running through these reports was that law graduates lacked practical legal experience and that there was a need to better align the provision of skills training and education around legal rules and theory in the legal education curriculum, so that students were provided with both academic knowledge and skills necessary for legal practice. The reports encouraged law schools to incorporate specific legal skills into the law curriculum.

Since the 1980s, law schools in Australia have incrementally incorporated the teaching of skills that form the basis of legal practice, evident through the introduction of clinical legal education (CLE) and alternative dispute resolution (ADR). The teaching of ADR to law students provides them with alternative dispute resolution options within an ethical framework, counters the formation of an adversarial legal identity and its vocational nature greatly assists to effectively impart lawyering skills. The most common forms of ADR that are taught in Australian law schools is mediation and negotiation.

In order to effectively build legal skills and to counter the formation of an adversarial legal identity, ADR needs to be included as a stand-alone and significant element of the law curriculum. Yet in Australia, there has been resistance to including ADR in the law curriculum[1] and differing approaches adopted by law schools to incorporate ADR in the law curriculum: it can be included as a specific ADR unit, incorporated into a particular law unit or can form part of a CLE unit.  Generally, ADR is included as an ‘add on’ to law courses with a minimalist approach taken by many law schools to its meaningful inclusion in the curriculum. This approach reflects the convergence of two competing functions of Australian legal education: the provision of education to law students with knowledge of rules and legal theory on the one hand, and the instilling of legal practice and alternative skills on the other.  James advances that legal education in Australia does not consist of a ‘stable and consistent body of knowledge and practices’ (James, 2004) and is characterised by six dominant competing discourses.[2]

He describes these discourses as ‘modes of power-knowledge’ and identifies these as doctrinalism, vocationalism, corporatism, liberalism, pedagogicalism and radicalism.[3]  These six approaches to legal education reflect the competing manner in which skills training is offered in the law curriculum, particularly with respect to the minimalist approach taken by law schools to include ADR in the law curriculum. In recognition of the importance of the key role ADR can play in ‘learning by doing’ and developing lawyering skills, La Trobe University Law School is one of the few law schools in Australia where Dispute Resolution has been included as a compulsory first year law unit.  

There have been calls for the inclusion of ADR as a mandatory part of the law curriculum.[4] These calls are highly justified given that ADR has been a mandatory feature of litigation processes for a considerable period of time. In addition, the inclusion of ADR as a meaningful aspect of the law curriculum will greatly assist law schools to meet the requirements of the Threshold Learning Outcomes (TLOs), developed and adopted by the Council of Australian Law Deans (CALD) in 2009. The TLOs reflect what a Bachelor of Laws graduate is expected to ‘know, understand and be able to do’ as a result of learning and cover areas relating to: knowledge (TLO 1), ethics and professional responsibility (TLO2), thinking skills (TLO 3), research skills (TLO 4), communication and collaboration (TLO 5), and self-management (TLO 6).[5]  

Over the years, some law academics have been advocating for the meaningful inclusion of ADR into the legal education curriculum. Such an undertaking needs to be informed by best practice and evidence and necessitates the allocation of resources by law schools.  Serious consideration needs to be given by law schools to include ADR in the law curriculum in a comprehensive manner to ensure that students are effectively educated and trained for legal practice.  

References

  1. Collins, P. 2015. “Resistance to the teaching of ADR in the legal academy”,  Australasian Dispute Resolution Journal, 26(2): 64-74.
  2. James, N ‘Australian Legal Education and the Instability of Critique’ (2004) 28 Melbourne University Law Review 375-405.
  3. Ibid.
  4. See e.g. Duffy, J. and Field, R. 2014. “Why ADR must be a mandatory subject in the law degree : A cheat sheet for the willing and a primer for the non-believer”, Australasian Dispute Resolution Journal,25(1): 9-19.
  5. Threshold Learning Outcomes. 2010.  Learning and Teaching Academic Standards Project  Bachelor of Laws Learning and Teaching Academic Standards Statement December 2010, Australian Learning and Teaching Council.
    <https://cald.asn.au/wp-content/uploads/2017/11/KiftetalLTASStandardsStatement2010.pdf>.

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Does Choice of Dispute Resolution Method Affect the Application of the Law?

An Open Question in Australia, Regarding the CISG

The ADRRN Blog encompasses the diverse methods of ADR, arbitration being one of them. This week my colleague Ben Hayward has kindly contributed an article in relation to a significant multilateral treaty utilised in international commercial arbitration known as the CISG. The article is a timely one as we celebrate the 40th year of the CISG. Thank you Ben.

Dr Ben Hayward is a Senior Lecturer in the Department of Business Law and Taxation at the Monash Business School, and completed his PhD at the Monash Law Faculty in 2015. He has previously worked at the Deakin Law School, and in private practice at Arnold Bloch Leibler Lawyers & Advisers. I thank Ben for his contribution to this week’s blog.

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Photo: Nroose/ Public domain

Author: Ben Hayward

Substantive law doesn’t feature regularly on the Australian Dispute Resolution Research Network blog.  Nevertheless, in today’s post, I’d like to look at one instance where substantive law and choice of dispute resolution method may collide.  This concerns the United Nations Convention on Contracts for the International Sale of Goods: commonly referred to as the CISG.

The CISG is a substantive law treaty developed by the United Nations Commission on International Trade Law. It seeks to harmonise international sales law, around the globe.  Differences in national sales laws are thought to create barriers to trade, increasing merchants’ costs of doing business.  If merchants deal with the same sales law across national borders, their costs of doing business are reduced, and trade is encouraged.

What does this have to do with choosing between dispute resolution methods? There might be a difference in the way the CISG is applied: though at present, we don’t know.

Because the CISG is intended to apply the same way in all jurisdictions where it is adopted – currently 94 States – its interpretation requires sensitivity to that international context.  According to Art. 7(1) CISG:

In the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade.

This provision sets out a rule of autonomous interpretation.  The CISG is to be given its own meaning, rather than being read in light of any particular State’s regular domestic law.  In Australia, therefore, we shouldn’t treat the CISG as if it replicates the rules in the Goods Act 1958 (Vic): even though this might be tempting, where this is the law we’re most familiar with.

Does the choice between dispute resolution methods impact the extent to which such internationally-minded interpretations are achieved?  This is an open question in Australia, and one that I hope to explore in my future research.

Litigation and international commercial arbitration are two different dispute resolution processes that both involve the application of substantive law.  Judges and arbitrators both interpret the CISG, where it applies in the cases they decide.

While the CISG came into force in Australia in 1989 – over 30 years ago – we still don’t have many Australian court cases concerning the Convention.  One of the most highly regarded international databases, the Albert H Kritzer CISG Database, records 28 Australian decisions.  In research I recently conducted for a forthcoming Melbourne University Law Review article, I identified an additional 5 cases via Lexis Advance: bringing the total to 33.  Even still, some of these are appeal decisions, some involve parties opting out of the CISG’s operation, and still others only mention the CISG in passing.  As I address in my forthcoming article and also in prior scholarship, Australian court cases directly applying the CISG tend to take a parochial approach to its interpretation.  It’s not uncommon for judges to equate the Convention’s operation to that of Australia’s ordinary Sale of Goods Acts: even though this is inconsistent with Art. 7(1) CISG’s interpretative rule.

What about the situation in arbitration?  Nearly 20 years ago, Jacobs, Cutbush-Sabine and Bambagiotti suggested that the CISG’s ‘modest treatment’ in Australian case law might be attributed to ‘the prevalence of arbitration, and particularly international arbitration, as a means of resolving dispute[s], although there is no empirical evidence of this’.

If CISG cases involving Australian businesses are being arbitrated rather than litigated, are those arbitral proceedings approaching the Convention in a more internationalist spirit?

At present, this remains an open question.  There is still no empirical evidence concerning the CISG’s use in arbitration involving Australian parties.  Since international arbitration is private/confidential, arbitral awards are not on the public record in the same way that court judgments are.  International evidence does suggest that arbitration is the primary forum for resolving international trade disputes, in a quantitative sense.  Since arbitrators may be chosen for their particular expertise, we might hypothesise that they would be more likely to take the CISG’s international context into account in their decision-making.  Nevertheless, one international study addressing the ‘quality’ of CISG analysis in arbitral awards (compared to court judgments) concluded that the relationship between the Convention and arbitration was ‘a picture of disinterest and neglect … rather than a fruitful marriage’. [1]

The CISG is intended to benefit merchants and their international trading activities.  In future research, I hope to assess the extent to which choices made by Australian businesses between dispute resolution methods impact the Convention’s achievement of this goal.

[1] Petra Butler, ‘CISG and International Arbitration – A Fruitful Marriage?’ (2014) XVII International Trade and Business Law Review 322, 323, 356.

Do consumers and businesses want the benefits of rule of law without the costs of rule of law?

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Among its multiple purposes, this Blog offers a space to highlight emerging research in the discipline of dispute resolution. To this end, I have invited Vivi Tan who is undertaking her PhD on the integration of information and communication technologies into dispute resolution processes and its ramifications. Thank-you for sharing Vivi.

Vivi Tan is a PhD student at Melbourne Law School. She researches across fields of consumer protection law, contract law and dispute resolution system and design, including alternative and online dispute resolution.  Her thesis explores the integration of information and communication technologies into judicial and extrajudicial dispute resolution processes and their implications for dispute resolution regulation and practice as well as for consumer protection law. Vivi has also taught Obligations and Contracts in the JD course and is currently teaching in the subject of Artificial Intelligence, Ethics and the Law. She is also an active member of the Centre of Artificial Intelligence and Digital Ethics.

By Vivi Tan

Much of the progress in relation to the implementation of publicly enforced ODR systems is mainly evident in North America[1], the US[2], the UK[3], the EU[4] and China[5]. The types of ODR systems implemented vary according to their level of automation[6] and their positioning within the broader existing legal system or framework. Closer to home, we have seen ODR pilots being undertaken by tribunals such as NCAT and VCAT. A number of studies, commentaries and reports have also unanimously promoted the use of ODR.[7] This reflects the ongoing recognition that ODR can potentially augment and improve existing consumer ADR mechanisms as well as tribunal or judicial dispute resolution mechanisms.

Given the increasing realisation and implementation of ODR within formal legal systems, it is crucial that attention is given to developing and utilising a robust dispute system design (“DSD”) framework to ground the design, implementation and governance of such ODR systems. We must not only focus on the analysis of the efficiency and accessibility drivers behind ODR[8], we must use a theoretically grounded framework to rigorously analyse the suitability of an ODR system as an institution, including the substance and outcomes of the rule choices within the system, the nature and quality of procedural and substantive justice that has been designed, and whether the system can effectively deliver it.[9]

To this end, I drew upon insights from the rich discourse on DSD and developed an analytical DSD ODR framework. The use of such framework should be treated as a distinct activity that has the potential to improve the design and effectiveness of ODR systems and the overall landscape within which they sit.[10] The DSD framework can generate normative values, legal and governance considerations relating to how disputes should be resolved and through what structures. In the consumer context, the framework can be used to analyse critical questions such as whether a consumer ODR system can be designed to enhance the core objectives of consumer dispute resolution; whether its process architecture can be designed to be consistent with the principles and values that are fundamental in a publicly-sanctioned dispute resolution system and vital to the due administration of civil justice and; whether a consumer ODR system can be designed to produce appropriate substantive outcomes?

Put simply, dispute system designers can use the DSD framework to critically analyse considerations and choices relating to:

  1.  the system design (system institutionalisation)
  2. the process design (appropriateness of tools and processes to be used) and
  3. the governance design (procedural and substantive safeguards, systematic oversight and evaluation).

The design of this analytic framework is highly influenced by the contributions in the DSD field from Ury et al, Constantino and Merchant, Bingham, Ostrom, Smith and Martinez, and, from the consumer dispute resolution field, Steffek et al., Hodges et al. and Gill et al.[11] In particular, it attempts to reconcile the earlier DSD contributions, which tended to have a process design focus, with the later contributions which put more emphasis on system design and governance focus. Since a detailed analysis of the DSD framework will be beyond the scope of this article, I will instead provide a summary of what each aspect entails.

The system design aspect is primarily concerned with the institutionalisation of ODR as a dispute resolution mechanism within Australia’s consumer regulatory and policy context. Dispute system designers will need to consider the unique characteristics of consumer disputes and the kinds of goals and objectives behind consumer redress and consumer protection regulations. The designers can then consider whether there needs to be prioritisations or trade-offs amongst those goals and how they are to be reflected in the design of the system.[12] There must also be a critical analysis on the interaction between the ODR system and other dispute resolution processes in the existing consumer redress framework in order to guide the positioning and integration of ODR as either an alternative or an additional model which can augment existing mechanisms of consumer redress.

System design considerations are to be treated as primary considerations which will directly influence and shape the governance and process design considerations. The process design considerations in turn focus on process architecture behind the ODR system including the different process options (prevention, management and resolution), the different resolution approaches (rights vs interest-based, adjudication vs settlement, intermediation) as well as the different functional characteristics. For example, system designers will need to consider the extent of integration of technology such as automated- decision-making functionality or artificial intelligence and its implications on the overall system, process and governance aspects of the ODR system.[13]

Finally, it is important that system designers pay close attention to governance considerationswith a view to fully integrate them onto the process architecture and to minimise the risks that ODR presents to the preservation of civil justice values such as accessibility, legal validity, transparency and accountability.[14]  As part of a systematic oversight and governance strategy, the system must be evaluated using quantitative and qualitative criteria to measure its effectiveness in meeting its goals and its ability to provide access to procedural and substantive justice[15] for consumers.

I hope that this ODR DSD framework can be used to critically analyse the choices relating to how a consumer ODR system should be designed, how its processes should be structured and how the system and its processes can be governed and evaluated. I also hope that the framework will have broader application to other disputing contexts as well.

[1] ‘Civil Resolution Tribunal British Columbia’ <https://civilresolutionbc.ca/&gt;; ‘Condominium Authority of Ontario’ <https://www.condoauthorityontario.ca/tribunal/&gt;; ‘The Platform to Assist in the Resolution of Litigation Electronically (PARLe)’ <https://www.opc.gouv.qc.ca/en/opc/parle/description/&gt;.

[2] The National Center for Technology and Dispute Resolution, ‘Courts Using ODR’ <http://odr.info/courts-using-odr/&gt;; ‘Utah Courts Small Claims Online Dispute Resolution Pilot Project’ <https://www.utcourts.gov/smallclaimswvc/&gt;.

[3] ‘UK Online Money Claim’, GOV.UK <https://www.gov.uk/make-court-claim-for-money&gt;; ‘Online Court and Tribunal Services for Professional Users and the Public’ <https://www.gov.uk/guidance/online-court-and-tribunal-services-for-professional-users-and-the-public&gt;.

[4] ‘EU ODR Platform’ <https://ec.europa.eu/consumers/odr/main/?event=main.home2.show&gt;.

[5] China Justice Observer, ‘COVID-19 Turns All Chinese Courts into Internet Courts Overnight’ <https://www.chinajusticeobserver.com/a/covid-19-turns-all-chinese-courts-into-internet-courts-overnight&gt;; ‘The Litigation Platform of Hangzhou Internet Court’ <https://www.netcourt.gov.cn/portal/main/en/index.htm&gt;.

[6] Vivi Tan, ‘Online Dispute Resolution For Small Civil Claims in Victoria: A New Paradigm in Civil Justice’ (2019) 24 Deakin Law Review 101. In this article, I argued that ODR systems to be differentiated through their level of automation and function. Such classification based on the level of automation focuses on the functionality of the ODR system. At one end of the spectrum, ODR can include technology-based substitution or automation of offline interactions and activities.[1] And at the other end of the spectrum, there are more complex automated ODR systems which have the potential to offer problem diagnosis and resolution capabilities that are fully automated.

[7] VCAT ODR Pilot Team, ‘VCAT ODR Pilot – a Case Study’ (at the ODR The State of the Art International Symposium, 22 November 2018) <https://www.odrmelbourne.com.au/&gt;; ‘NCAT Online Dispute Resolution Pilot’ <http://www.supremecourt.justice.nsw.gov.au/Documents/Publications/Speeches/2016%20Speeches/Wright_120816.pdf&gt;; Tan (n 6); Tania Sourdin, Bin Li and Tony Burke, ‘Just, Quick and Cheap: Civil Dispute Resolution and Technology’ (2019) 19 Macquarie Law Journal 17; Peter Cashman and Eliza Ginnivan, ‘Digital Justice: Online Resolution of Minor Civil Disputes and the Use of Digital Technology in Complex Litigation and Class Actions’ (2019) 19 Macquarie Law Journal 39; Monika Zalnieriute and Felicity Bell, ‘Technology and the Judicial Role’ in The Judge, the Judiciary and the Court: Individual, Collegial and Institutional Judicial Dynamics in Australia (Cambridge University Press, 2020); Michael Legg, ‘The Future of Dispute Resolution: Online ADR and Online Courts’ (2016) 27 Australasian Dispute Resolution Journal 227; Productivity Commission, Access to Justice Arrangements, Inquiry Report No.72 (2014) 68; Victorian Government, Access to Justice Review Report and Recommendations (Volume 1) (August 2016) <https://s3.ap-southeast-2.amazonaws.com/hdp.au.prod.app.vic-engage.files/3314/8601/7221/Access_to_Justice_Review_-_Report_and_recommendations_Volume_1.PDF&gt;; Productivity Commission, Consumer Law Enforcement and Administration (2017).

[8] Tan (n 6); Legg (n 7); Lee A Bygrave, ‘Online Dispute Resolution – What It Means for Consumers’ (Baker & McKenzie Cyberspace Law and Policy Centre in conjunction with the Continuing legal Education Programme of University of NSW, 2002). Bygrave argued that the ‘quick-fix’ enthusiasm surrounding the online facilitation of ADR focused too heavily on the efficiency arguments or drivers such as the apparent speed, flexibility and affordability relative to traditional litigation in the courts as well as the ability to alleviate pressure on the court system. Legg has similarly argued that ‘achieving access to justice requires careful attention on the key [ODR] design considerations including convenience, expertise, impartiality, fairness and costs’.

[9] Lisa Bingham, ‘Designing Justice: Legal Institutions and Other Systems for Managing Conflict’ (2008) 24(1) Ohio State Journal on Dispute Resolution 1, 19, 25–26.

[10] Andrew Le Sueur, ‘Designing Redress: Who Does It, How and Why?’ (2012) 20 Asia Pacific Law Review 17.

[11] William Ury, Jeanne Brett and Stephen Goldberg, Getting Disputes Resolved: Designing Systems to Cut The Costs of Conflict (Jossey-Bass, 1988); Cathy A Constantino and Christina S Merchant, Designing Conflict Management Systems: Guide to Creating Productive and Healthy Organisations (Jossey-Bass, 1st ed, 1995); Bingham (n 9); Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action (Cambridge University press, 1990); Stephanie Smith and Janet Martinez, ‘An Analytic Framework for Dispute Systems Design’ (2009) 14 Harvard Negotiation Law Review 123; Felix Steffek and Hannes Unberath (eds), Regulating Dispute Resolution – ADR and Access to Justice at the Crossroads (Hart Publishing, 2013); Christopher Hodges, Iris Benöhr and Naomi Creutzfeldt, Consumer ADR in Europe: Civil Justice Systems (Hart Publishing, 2012); Chris Gill et al, ‘Designing Consumer Redress: A Dispute System Design (DSD) Model for Consumer-to-Business Disputes’ (2016) 36(3) Legal Studies 438.

[12] Michael J Trebilcock, ‘Rethinking Consumer Protection Policy’ in Charles E F Rickett and Thomas G W Telfer (eds), International Perspectives of Consumers’ Access to Justice (Cambridge University Press, Online Publication, 2009) 68.

[13] Tan (n 6); Robert J Condlin, ‘Online Dispute Resolution: Stinky, Repugnant, or Drab’ (2017) 18(3) Cardozo Journal of Conflict Resolution 717.

[14] Tan (n 6).

[15] Bingham (n 9); Mary Anne Noone and Lola Akin Ojelabi, ‘Alternative Dispute Resolution and Access to Justice in Australia’ (2020) 16(2) International Journal of Law in Context 108.

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