Author Archives: Lisa Toohey

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About Lisa Toohey

Lisa Toohey is a Professor at the Faculty of Law and Justice at the University of New South Wales Sydney. She has over 20 years of experience in academia, a career she commenced after being in legal practice in Australia and Vietnam. Lisa teaches, researches and supervises in the areas of international trade law, dispute resolution and civil justice innovation.

Vale Dr John Woodward

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John, taking a break from writing at the University of Newcastle in March 2020

It is with sadness that our community honours the passing of Dr John Woodward on 5 February.   

John was a trusted colleague, a dedicated member of this Network, a solicitor who spent almost 30 years in litigation practice, a mediator, an arbitrator, and a member of the Law Society of NSW ADR Committee.   He was also so much more than his career achievements, a man who spoke lovingly of his family, an artist, avid tennis player and a friend to so many. One of John’s greatest contributions to the world of ADR was his time spent teaching students in the legal clinic and in civil procedure. His encyclopaedic knowledge of litigation allowed him to speak with an authority on why cultural change in the legal profession is essential, and students listened to what he had to say.

Litigation had been the cornerstone of most of John’s career, and his experience eventually led him to become a keen observer of litigation’s shortcomings. Here is how John explained his ‘conversion’ from hard-nosed litigator to a strong believer in the power of mediation and “the vision of a broader view of justice“:

“[My conclusion was] after thirty years of legal practice as a commercial litigator, that the solutions being offered to litigants by the traditional justice system were somewhat less than ideal.  Clients were complaining that the court could not offer the relief they were seeking, the costs of “winning” were prohibitively high and most of the cases in which I was instructed were resolved on some basis well before they reached a hearing. 

Try as I might, I could never quite be convinced of the claim that the public interest in having the courts “…explicate and give force to the values embodied in authoritative texts…” (1) or otherwise declare the law for the benefit of the public good, had any real relevance to some of the mundane and routine cases in which I was involved.  In fact, of all of the hundreds of cases in which I acted throughout my career as a lawyer, only two found their way into the law reports.” 1

After graduating with a Masters in Dispute Resolution from UNSW, John decided to commence his PhD, as he felt that regulators had made certain assumptions about the legal change that had been brought about by civil procedure rules mandating mediation. The topic resonated well with one of John’s favourite quotes:

“How small, of all that human hearts endure, that part which laws or kings can cause or cure.”

You can read an earlier profile of John and his PhD work in this blog post from 2016.   He graduated in 2019, with his dissertation modestly entitled “Lawyer approaches to Court-Connected Mediation: A New Case Study,” and this is available free open access through SSRN. The key finding of John’s PhD research, based on a large set of qualitative data, was that lawyers are keenly aware of their ethical obligations towards their clients in terms of protecting them, but that this gave rise to a reluctance to have clients directly participating in the mediation process. He also identified that the profession remains generally confused about the extend of confidentiality in mediation, and that this further inhibits lawyers from engaging fully in the mediation process. Finally, he noted that there were still cultural barriers within the profession, stemming at least in part from the limits of most models of legal education.

John’s 2019 PhD Graduation

Some of John’s pieces on this network include: 

John Woodward (far left) at the  6th ADR Research Roundtable at the University of Otago in 2017

Some of John’s scholarly articles include:

John had a fight on his hands after being diagnosed with an aggressive glioblastoma in mid-2023, and he faced that fight with his usual sense of humour and determination, exceeding the dire predictions of his life expectancy but cautioning me regularly with a grin, “don’t buy me any green bananas.” I had the privilege of supervising John’s PhD thesis at UNSW and then at the University of Newcastle, and as the decade passed, we built a friendship based on a passion for ADR (and also for coffee) that transcended the difference in our life stages.

Thank you John for all you taught us, for the future generation of lawyers you helped educate, and for showing us all the power of change to make the world a better place. Ave atque Vale (hail and farewell).

At the 13th ADR Research Network Roundtable in November, we will hold a session in John’s honour.  If you’d like to be involved, please contact me or respond to the call for papers. 

  1. Quote from John’s 2018 blog post about his PhD journey ↩︎

Mediation as Melodrama, One and a half decades on …

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This blog post is motivated by my discussion with a friend about mediation. The friend was recounting her experiences of a divorce mediation, and her description reminded me of an article that I read many years ago by an academic and practitioner who I greatly admire – Dr Samantha Hardy, who these days is the Director of the Conflict Management Academy. The article is entitled “Mediation and Genre” and you can access it here – in the author’s own words, the objective of the article is to explain:


“why a conflict narrative based on the genre of melodrama tends to work against the resolution of the conflict and proposes tragedy as a more constructive genre for a conflict narrative. The paper also discusses how the mediation situation itself can constrain the possible genres that can be constructed in the process and explores the implications of those constraints for people in conflict and for the mediators facilitating a resolution.”

Sam first published this article in 2008 – now some 15 years ago. On re-reading it this week, I was struck by what an enduring piece it is. It also struck a chord with the friend who had recently been through the process as a participant.

Exploring the relationship between mediation and narrative, she explains how the genre of melodrama shapes conflict stories and in turn the mediation process itself. This is more than a purely academic exercise, as understanding melodramatic tendencies can significantly benefit both mediation practitioners and researchers. Most – or I would imagine, virtually all – practitioners would recognise what Cobb refers to as the rigidity and self-perpetuating nature of conflict stories – stories that each person uses to explain the relationship between the disputants, their actions, and the outcomes [link].

The Grip of Melodrama: How We Tell Our Conflict Stories

Western culture is particularly fond of the genre of melodrama, influencing how individuals perceive and articulate their conflicts – and in turn this has consequences for how we might mediate disputes. Sam uses the term “melodrama” not in the colloquial sense of over-the-top theatrics but rather as a specific literary genre characterised by:

  • Moral Polarisation: The division of characters into ‘good’ and ‘evil’, with the storyteller typically casting themselves as the innocent victim and the other party as the villain;
  • Heightened Emotions: Conflicts are often recounted with exaggerated displays of feelings, emphasising the victim’s suffering and aiming to provoke anger and judgment towards the villain; and

Sensationalism:  Disputants’ stories often  jump between events without a linear sequence of cause-and-effect, focusing instead on dramatic turning points and neglecting nuanced explanations.

She argues that individuals in conflict often become “told” by the melodramatic narrative, unconsciously adopting its framework to make sense of their situation. This leads to an oversimplification of complex issues, a focus on individual blame rather than systemic factors, and a rigid adherence to “dream justice” where the victim is vindicated and the villain punished.

Melodrama and the Mediation Process

The influence of melodrama extends beyond the conflict story itself, shaping the dynamics within the mediation process. These include through the duelling of competing narratives – with each party trying to position themselves in the role of victim and the other in the role of perpetrator. Unsurprisingly this hinders the exploration of shared responsibility and understanding. At the same time, melodramatic narrative often positions the mediator as an authoritative figure expected to discern the truth, dispense justice, and protect the victim.

Breaking Free from the Melodramatic Trap: Move Towards the Tragedy

Sam puts forward tragedy as an alternative literary genre that can offer a more constructive lens for understanding conflict. Unlike melodrama, tragedy acknowledges the complexities of human experience, allowing for:

  • Complex Characters: Tragic characters are not purely good or evil but possess internal conflicts and inconsistencies, making their actions understandable even when flawed;
  • Choice and Responsibility: Tragedy emphasizes the protagonist’s agency and the impact of their choices, even within constrained circumstances; and
  • Acceptance and Growth: Tragic narratives recognize that conflict can lead to suffering but also hold the potential for self-awareness and growth, even without a “happy ending”.

Mediators can help facilitate a shift from melodramatic to tragic understanding by:

  • Deconstructing Polarized Identities: Using irony and carefully crafted questions, mediators can help parties recognize the nuances and contradictions within themselves and each other;
  • Highlighting Choice and Agency: By emphasizing the choices available to parties, even within difficult situations, mediators can empower parties to actively participate in shaping the outcome of their dispute;  and

Shifting Focus from the Past to the Future: Encouraging parties to acknowledge their suffering and learn from their experiences allows them to move beyond blame and consider possibilities for growth and change.

The Enduring Relevance of this research

This piece encourages us to move beyond simplistic “fairy tale” understandings of conflict and encourage us to reflect on the complexities inherent in human interaction – and in mediation in particular. By recognising and addressing the tendency towards melodrama, mediators can better assist parties to move beyond entrenched positions and engage in more nuanced, productive dialogue.

Sam develops the concept much further in her book Conflict Coaching Fundamentals: Working with Conflict Stories, and she developed the REAL Conflict Coaching System as a way to support people to re-write their conflict story into one that gives them more choice and agency.

From the Author ….

I took this blog post as an opportunity to contact Sam, and I asked her how her own thinking on mediation narrative has evolved since she wrote this piece. Here’s what she said ….

“When Solon Simmons (Professor at the George Mason University Carter School for Peace and Conflict Studies and Director of the Narrative Lab) mentioned in passing on LinkedIn that I featured in his new book Narrating Peace: How to Tell a Conflict Story, I assumed that I showed up in a footnote somewhere.  Imagine my surprise and absolute delight when I started reading it and discovered that not only has he named a turning point in narrative and conflict scholarship as the “Cobb-Hardy Pivot” (after one of my mentors Sara Cobb and I), he also described my article about mediation and genre as “one of the most important articles on narrative social science in the past century”!  Honestly, to say he made my day is an enormous understatement!  

It’s also so rewarding to know that the work I did in my PhD actually forms the basis of a lot of what I do today in my work with clients in conflict, and supports others to do the same. That long slog to the PhD finish line was worth it in the end!”

Defending Community Mediation: The Urgent Need to Save the CJC

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This is a post by guest author, Professor Lise Barry. Professor Barry is Dean of Macquarie Law School and editor with David Spencer and Lola Akin Ojelabi of the 4th and 5th Editions of “Dispute Resolution in Australia: Cases, Commentary and Materials” (Thomson Reuters). Lise is an accredited mediator and has been a member of the NSW Community Justice Panel since 2004.

On 17th October this year, I received a surprising email from the Department of Communities and Justice, announcing that the Government had decided to close down the Community Justice Centre (CJC) in NSW and repeal The Community Justice Centres Act 1983 (the Act), which establishes and governs the operation of the service, effective 30 June 2025. Mediators are in the dark about the basis on which this decision has been made.

What a terrible loss to the community.  To understand a little about the CJC it is useful to look at its history.

CJC was established as a pilot in 1980.  Writing at the time of the creation of pilot program for CJC, Deputy Chief Magistrate Kevin Anderson wrote:

“To a magistrate who has for years been acutely conscious of the failings of the conventional justice system, Community justice Centres hold great promise. The Community Justice Centre pilot project is an important development in the evolution of law and society in this country.  The experiment deserves support.”

Introducing the Community Justice Centre Act of 1980, the then Attorney General and Minister for Justice, the Hon Frank Walker QC, echoed the hope that “the availability of mediation will ease significantly the present burden on magistrates courts in dealing with minor disputes where the cost and emotional upset involved are entirely disproportionate to the results achieved at the hearing.”  Mr Walker praised “the 106 people from all walks of life and representing most ethnic communities who have shown such enthusiasm and dedication in their training to be mediators.”

I was struck when reading about the recruitment of mediators for this new service.  The Law Foundation of NSW conducted the pilot review, noting,

“Two or three hundred people initially applied for selection at each of the three centres…. Each centre aimed to recruit a group of trainees which was diverse in age, sex, educational background and country of birth.  Further criteria for selection included such personal characteristics as tolerance, assertiveness, and ease of manner.” 

These are qualities that todays’ mediators would also do well to possess.

By 2001, the name “Community Justice Centre” had made its way into the Macquarie Dictionary, defined as “a centre offering a free and confidential mediation services as an alternative to normal legal channels in disputes between parties who have an on-going relations, as members of a family, neighbours, etc.” (Macquarie Dictionary 3rd ed, 2001, 396).

2002 saw the development of Indigenous mediation services, initially in the Northern CJC region, resulting in accreditation of 63 Indigenous mediators trained in NSW by the year 2006.Writing about the Indigenous service in the Indigenous Law Bulletin of 2006, Bill Pritchard, Senior Aboriginal Programs Officer at CJC wrote: “The acceptance of the program by Indigenous people and communities is reflected in the number of mediations undertaken by CJCs where at least one party identifies as Aboriginal or Torres Strait Islander.” He noted the rise from 62 cases in 2001/2002 to a reported 258 mediations undertaken in the 10 months to 1 May 2006. 

In 2004, in preparation for a Law Reform Commission Inquiry into CJC, a survey of CJC clients was conducted and the findings published in Report 12. 76 mediation participants were interviewed, almost half of them neighbours, with approximately one third reporting that an Apprehended Personal Violence Order was involved.  Participants commented on the mediators skill, the opportunity for discussion, avoiding court and that the service was free.  Interestingly, the most common suggestion of participants was to increase public awareness of the free service. 

Success rates for CJC are high.  Report 12 noted “Of the 2,786 cases that were mediated at CJCs between 1 July 2002 and 30 June 2003, 82% resulted in an agreement between the parties.”  76% of participants reports that mediation had improved their situation. Today, CJC fact sheets report that over 80% of participants reach an agreement.

In 2005 a further review of CJC by NSW Law Reform Commission Report 16, recommended the inclusion of an objects clause into the CJC Act.  Relevantly, the current Objects of the CJC Act read:

3   Object of Act

The object of this Act is to provide for the establishment and operation of Community Justice Centres for the purpose of:

(a)  providing dispute resolution and conflict management services, including the mediation of disputes, and

(b)  training persons to be mediators, and

(c)  promoting alternative dispute resolution, and

(d)  contributing to the development of alternative dispute resolution in New South Wales by entering into connections and partnerships with the legal profession, courts, tribunals, the academic sector and other providers of alternative dispute resolution services, and

(e)  undertaking other matters incidental to the provision of dispute resolution and conflict management services.

The 2005 Report noted that the CJC mediations were conducted “by Mediators who provide their services on a sessional basis (receiving small remuneration)…”  The small remuneration remains true, with mediators currently earning $41.60 per hour – this is a role that CJC mediators take on for love, not money. 

You can imagine then how disappointed some long-term mediators were, some of whom had over 30 years of service to the community of NSW, when they were provided with two lines of thanks for their service in the emailed announcement.

One of those long term mediators was Barbara Jean Armitage OAM, who sadly passed away on 29th October this year, her SMH obituary noting, that Barbara was a “Feminist, committed activist and crafter, life member of the Australian Labor Party. Waverley Municipal Council Alderman 1979-1997, Mayor of Waverley 1987-1997, Local Government Grants Commission Chair 1999, Premier’s Crime Prevention Council member and accredited mediator with the Community Justice Centre.”  Barbara’s pride in her service as mediator so clear and so poignant.

CJC mediators are well trained.  I fondly recall the three weeks of full-time training that I undertook before commencing work with CJC.  More recently, CJC have provided much needed supervised experience for new mediators and are a source of much needed accreditation hours for panellists for whom mediation is a passion, but not a full-time job. They have been the Recognised Mediator Accrediting Body for hundreds of mediators in NSW.

The initial email I received, advised that the Dept Community and Justice will be establishing a new inhouse mediation service for court mandated referral from 1 July 2025.  Advice to the current panel members suggest that this service will primarily be in connection with the Crimes (Domestic and Personal Violence) Act 2007.

While services for victims of domestic and personal violence are desperately needed, the dissolution of the CJC will be a terrible blow to the community.

In the 20 years of mediation I have completed for CJC, I have helped countless neighbours resolve disputes about everything from trees, to noise, to construction, to parking.  I have mediated employment disputes about pay, bullying and harassment and disputes over promotions.  I have mediated commercial disputes, assisted local registers to manage unrepresented litigants on List Days, mediated disputes between builders and homeowners, between committee members of small craft organisations, and multi-party disputes involving community groups.  I have assisted separating couples with property disputes and worked with tenants in disputes with their landlords and mediated disputes between parents and teenagers and between schools and chronic school avoiders. Not a single client paid for these services.

The decision to close CJC is likely to lead to increased legal costs, drawn out and escalating disputes, pressure on local councils and the Land and Environment Court who rely on CJC to manage so many tree and fencing disputes, and of course, pressure on disputants. As several of my fellow mediators have asked, what steps will be taken to manage the increased pressure on police and the court system, once CJC is closed?

Many incorporated community associations, who have a constitution based on the Model Rules provided by Fair Trading, and which directs associations to CJC for mediation in the event of disputes, will be affected by the decision. What will be done to manage the impact on these associations?

s9 of the Model Constitution currently reads

Resolution of internal disputes

  • The following disputes must be referred to a Community Justice Centre within the meaning of the Community Justice Centres Act 1983 for mediation:
    • a dispute between 2 or more members of the association, but only if the dispute is between the members in their capacity as members, ora dispute between 1 or more members and the association.

    • If the dispute is not resolved by mediation within 3 months of being referred to the Community Justice Centre, the dispute must be referred to arbitration.

On Tuesday 12th November, the Hon Gareth Ward put a question on notice to the Premier: “I have in my hand documents indicating that the Government will be closing Community Justice Centres and sacking mediators across the State, who provide a valuable service. Will the Premier reverse these cuts?”

Let’s hope the answer will be yes.

The CJC has been a cornerstone of alternative dispute resolution in New South Wales, providing free and effective mediation that has benefited countless individuals and communities. The loss of the CJC will not only increase the burden on our legal system but also deprive many of a crucial resource for resolving conflicts amicably. I urge all mediators, legal professionals, and supporters of community justice to lobby the government to reconsider this decision.

Mediation standards in Australia – uncovering what actually happens

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Alan Limbury

This blog post has been made on behalf of its author, Alan Limbury of Strategic Resolution and was originally published on the Kluwer Mediation Blog on 22 February 2021. It is republished in accordance with Kluwer’s editorial guidelines. The original post can be found here.

Photo by fauxels on Pexels.com

Given the confidential nature of mediation, it is a rare set of circumstances that allow us to catch a glimpse into the mediator’s craft. The current review of the professional standards governing Australia’s accredited mediators provides one such opportunity, The review seeks, to the extent permissible, to uncover what practitioners are actually doing, including the extent to which their knowledge and skills change with experience and in response to the various contexts in which they practise.

What is being reviewed?

After several years of discussion and community consultation, in 2008 a voluntary National Mediator Accreditation System (NMAS) was adopted in Australia. It comprises a set of Practice Standards which specify the minimum practice and competency requirements of a NMAS accredited mediator and a set of Approval Standards which specify the training, assessment, personal qualities and experience required for renewal of accreditation. The system also sets out the qualifications required of Recognised Mediator Accreditation Bodies (RMABs) in order to accredit mediators in accordance with the NMAS. The NMAS was last reviewed in 2015.

The current review

Last year the Mediator Standards Board (MSB), which oversees the system, engaged Danielle Hutchinson and Emma-May Litchfield of Resolution Resources (RR) to lead the NMAS Review 2020-21 in order to evaluate the effectiveness of the NMAS and consider what changes and additions need to be made.

Drawing on well-established techniques from the field of education and psychometrics, RR has adopted a collaborative and data-driven approach. The Australian DR community can therefore feel confident that any recommendations arising out of the review are evidence-based, informed by expert practitioners and reflect the variety of processes and contexts in which practitioners typically operate.

The NMAS Review 2020-21 Process

The process provides a number of opportunities for interested stakeholders to contribute. In particular, it includes widespread consultation involving reference groups, workshops and surveys amongst MSB members, RMABs, training organisations, mediators, community groups, professional associations and other experts in the field.  Information collected from these events will be subject to rigorous data analysis to identify a range of patterns including the way that practice may evolve with experience or as it is applied in different contexts. This type of psychometric analysis, though well-established in other disciples, it not typically used in the dispute resolution sector. This presents an exciting opportunity for the MSB, which is expected to consider the recommendations in mid-2021.

Reference groups

In the first stage, five Reference Groups sought to identify areas for possible amendment to the current standards in relation to First Nations Mediators; Diversity and Inclusion; MSB Member Organisations (including RMABs and training organisations); Non-NMAS Processes (including conciliation, family dispute resolution, hybrid processes and restorative practice); and Institutions with an interest in NMAS (including courts/tribunals, higher education and institutional dispute systems).

Based on my interest in the role of the mediator in hybrid processes such as med-arb and arb-med-arb, I was invited to contribute my thoughts to the Non-NMAS Processes Reference Group. I worked with fellow contributors to identify areas within the NMAS which might address the practice of “switching hats” whereby the same person may act as both mediator and arbitrator in the same dispute, without jeopardising their impartiality as mediator or the enforceability of any arbitral award. An example of the kind of problems that can arise in this area is here.

Workshops

The second, recently completed, stage involved a series of day-long virtual Workshops. Participants, of which I was privileged to be one, represented a cross-section of the mediation community. The object was to flesh out the work done in the Reference Groups. The key focus areas were Professional Knowledge, Practitioner Skills, Professional Engagement and Professional Ethics and Responsibilities.

Key to our dialogue and work for the day was shifting our focus beyond the minimum threshold for accreditation, a perspective which tends to produce a compliance mindset.  Instead, participants were asked to contemplate and articulate the distinguishing features of mediator practice as typically manifested in those who are newly NMAS accredited, those who are proficient and those who would be considered expert.

These levels of practitioner sophistication were further considered in the differing contexts of conciliation, family dispute resolution, court or tribunal annexed mediation, restorative practice, hybrids and diversity.

The rationale for considering varying degrees of practice together with processes which have historically fallen outside the NMAS is to enable the development of a standards-referenced framework which identifies the extent to which knowledge, skills, values and obligations may be common across processes and contexts. This also means that processes and contexts requiring specific knowledge, skills or expertise can also be properly recognised.

This way of thinking about mediator practice is difficult. This is especially so for the expert, who must bring to consciousness elements of their craft that have long since become intuitive. With this in mind, RR developed a suite of pre-workshop materials to help us orient our thinking towards this new way of reflecting on and conceptualizing the evolution of one’s practice. The materials included sample scales of mediator knowledge, skills and attitudes and very useful guidelines for describing quality.

Surveys

The next step in the process is to synthesise the information generated via the reference groups and the workshops to inform the development of the NMAS Review Survey. This survey will be the main instrument for consultation and will be open to all interested stakeholders within the Australian DR community in mid-2021.   The data collected via the survey will then be analysed, using a range of psychometric techniques. The findings from this analysis will form the basis of the recommendations to the MSB.

In this way, every person who completes the survey will play a vital part in the NMAS Review 2020-21 and lend their voice to the future of dispute resolution in Australia.

State of the Art: Program from the 9th Australasian Dispute Resolution Research Network Roundtable and advance notice of the 10th Roundtable

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One of the greatest joys of academic work is the opportunity to discuss big ideas with colleagues. To really get into the details of another person’s work, think through the issues together, and receive critique on our own work – all in a supportive, engaged group.

For nine years, the ADR Research Network has offered precisely that opportunity to established academics and early career researchers from around Australia. Since that first meeting, our membership and scope has expanded, and this year we welcomed participants from Australia, New Zealand and the United Kingdom. And for the first time, the Roundtable was combined with another established research and teaching conference, the Civil Justice Research and Teaching conference, which has been the main meeting of academics who teach and research in what is sometimes known as ‘civ pro’ (civil procedure) – or more commonly these days ‘civil justice’ or ‘civil dispute resolution’.

We look forward to the 10th Research Network meeting, which is scheduled for February 2022 at Bond University on the Gold Coast. As always, we invite early career researchers and especially PhD students to take part, and encourage any readers who are also supervisors to extend that invitation to their students. A call for papers will be made on this site towards the end of 2021.

In the meantime, here’s the conference program from the 9th meeting, which provides an insight into the range of topics covered this year, together with the abstracts of the papers and the bios of the presenters. Keep an eye out for much of this excellent work coming out in journal articles and other formats throughout 2021.

final-9th-adr-research-network-round-table-and-civil-justice-research-conference.docx-5Download

Pandemic Possibilities: Current Research on Technology and Dispute Resolution

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Photo of the conference program showing an aerial view of Newcastle Australia

The 9th Australasian Dispute Resolution Research Network Roundtable, held this year in conjunction with the Civil Justice Research and Teaching Conference, was held on 1-2 February and hosted by the University of Newcastle Law School.

Every year the Roundtable provides a unique perspective on the ‘state of the art’ in dispute resolution research – and this year was no exception. For the benefit of those who could not attend, this post draws insights from one section of the many conference papers – those focussed on the technological change that has been hastened by COVID-19.

The Covid19 pandemic required courts, tribunals and dispute resolution providers to rapidly ‘pivot’ to keep providing services during the pandemic. As Dr Joe McIntyre observed in his paper,

The last five years have seen significant developments in the use of digital justice technology globally. Australia has, in contrast, been relatively slow moving in embracing the use of such technologies to improve the efficiency and accessibility of its courts. The sudden shutdown required to respond to the 2020 global pandemic forced jurisdictions around the country to rapidly cobble together technological solutions to allow emergency access to the courts to continue…

Joe’s paper highlighted what he sees as a potential upside of the pandemic-driven technology shift – that we might be might be willing to shift our mindset to embrace a broader conception of the role of a court. His paper also highlighted some of the practical work he’s been doing on an online mechanism for resolution of tenancy bond disputes.

The Roundtable provided early insights into some of the excellent empirical work undertaken during 2020 on the disruption and innovation seen internationally in the civil justice sphere.

The Roundtable provided early insights into some of the excellent empirical work undertaken during 2020 on the disruption and innovation seen internationally in the civil justice sphere.

Associate Professor Genevieve Grant undertook a study of 37 lawyers about their experiences of hearings undertaken both online and by phone. Her findings reflected a wide range of experiences and both the advantages and disadvantages of hearings at a distance.

https://twitter.com/gengrant/status/1302473342994100225?s=20

In New Zealand, Dr Bridgette Toy-Cronin has been looking – both pre- and post- pandemic at the telephone mediation of rental disputes. While this research was already important in 2019, it has acquired new urgency during 2020 as telephone mediation has become more widespread. While the ‘low tech’ solution of telephone can make it accessible for those not able to engage with video technology like zoom, the medium presents its own unique challenges.

Tayne Redman, is a lawyer at the Accessible Justice Project, which is an organisation established bythe University of Adelaide and law firm Lipman Karas – and which operates as a not-for-profit law firm. Tayne’s presentation highlighted the intense community demand for innovative and cost-effective delivery of legal services – now more than ever for the ‘missing middle’ who can neither afford legal advice nor are eligible to receive legal aid.

My own research, currently still at the stage of data analysis, unintentionally examines the impact of covid on innovation in law firms and legal education. Like many researchers, my team collected data during 2020, which meant that participants’ thoughts were naturally attuned to the impact of the pandemic. That study, designed to understand how legal actors conceptualise and respond to ‘innovation’ has highlighted the beneficial effect that a rapidly emergent situation can have on innovation. Not only is the speed of innovation, by necessity, sped up, the need for rapid change can dampen the impact of path dependency and lessen resistance to change.

What, then, is the way forward for the legal profession, legal institutions, lawyers and academic in this new environment? I think it’s summed up beautifully by one of my interviewees, the Dean of a large law school:

It’s important to consider the relationship between research and its contribution and its community – it’s at its best when there’s mutual understanding. We have brought a sense of mutual understanding much more clearly back into the frame as a result of COVID-19.

We need to focus on what communities and businesses need, and to design solutions that meet those needs. We need to keep building new and innovative partnerships between the academic sector, the public sector and the private sector, and bring lots of voices into the conversation. We also need to carefully evaluate solutions that have been implemented quickly, before allowing temporary fixes to become more permanent. It is reassuring that there is so much important research from the Network continuing in 2021.

What do ‘lay’ people know about justice?

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Justice League Entrance

This post is from Charlie Irvine, from the University of Strathclyde in Glasgow, where he is the Course Director on the LLM/MSc in Mediation and Conflict Resolution.  Charlie’s profile is online at https://www.strath.ac.uk/staff/irvinecharliemr/ 

This post is based on his recent publication in International Journal of Law in Context [1]
Image: “Justice League Entrance” by cogdogblog is licensed under CC BY 2.0

 

In June 2017 I travelled from Scotland to attend a symposium on ADR and Justice at La Trobe University, Melbourne.  Being midway through a PhD it seemed an unmissable opportunity to meet other researchers ploughing the same furrow.  It certainly was, and I’m grateful to Lola Akin Ojelabi and Mary Anne Noone for organising it, but in academic life exciting foreign travel usually comes at a price. Three years later they are both to be congratulated for inspiring, editing and contributing to a special edition of the International Journal of Law in Context. I describe my contribution below.  

‘Lay’ people

University teachers faced with marking hundreds of papers have been known to find some crumbs of comfort in students’ more eccentric answers.  I’m not immune to this guilty pleasure, recently learning that ‘another form of ADR is arbitrary.’  More seriously, I am sometimes struck by a common theme among first year law students.  Here are three examples:

‘One of the major drawbacks of mediation is that lay people are in control of justice.’

‘Lay individuals are not capable of concluding rationally justified outcomes.’

‘How will a lay person truly know what is right and wrong if they have no in-depth knowledge of the law?’

However crudely put, these remarks suggest that a few months of legal study are sufficient to persuade young people that the rest of humanity (‘lay’ people)  lack the capacity to achieve or even reason about justice.

When lay people are the decision-makers: mediation

For those of us who practice mediation these sentiments are frustrating.  My clients seem to do a great deal of thinking about justice, and are quite capable of rejecting economically advantageous settlements if they view them as unjust or unfair.  Justice, or resisting injustice, can trump self-interest.

It is not only students who question whether mediation can deliver just outcomes.  A good many lawyers and judges are mediation sceptics and a thriving cottage industry within legal scholarship is devoted to demonstrating its shortcomings.[2]  Even supporters of mediation tend to stress other benefits like cost, speed and good process, leaving justice well alone.

However, academics like a gap because our research can fill it.  A review of the critical literature highlights a gap in our understanding of mediation.  While a lot of attention has been paid to settlement rates, satisfaction, mediator behaviour and procedural fairness,[3] very little research focuses on parties’ reasoning about justice.  And yet each time a case settles both sides must have good reasons for doing so.  What can we learn from their thinking?  I was particularly interested in mediations with unrepresented people, given that represented parties may well defer to their legal advisors.

The research

Scotland has not been particularly receptive to mediation. Some of our most prominent judges have made pointed speeches praising litigation and decrying anything that might divert cases away from the courts.[4]  At the small claims level, however, things are more open and mediation schemes have been operating in the country’s two largest courts since 1999 and 2014 respectively.  These presented an opportunity to interview mediation consumers who experienced relatively little legal or judicial endorsement of the process.  In the end I interviewed 24 people; the article is based on my initial analysis of five interviews.  Qualitative research is less concerned about large, representative samples than in-depth exploration of a complex topic.

Findings

Participants were keen to discuss their thinking.  Not being repeat players in the courts the experience of mediation left a vivid, if not always pleasant, memory.  When asked about what they sought or why they settled they rarely mentioned the law.  However, they expounded a number of themes lawyers will recognise, either as legal doctrines or aspects of practical lawyering.  These included:

  • Restitution – ‘I’m quite happy to take … not be out of pocket from what I intended’
  • Punishing bad behaviour
  • Teaching someone a lesson – ‘he needed to learn that he can’t just get away with things’
  • Holding businesses to account – one participant regretted mediation’s privacy and wished for an ombudsman
  • Pragmatism and tactics – assessing your adversary’s strengths, weaknesses and stubbornness
  • Risk – ‘when you go to court, it’s a 50/50, there’s no guarantees’
  • Empathy for the other party
  • The urge to be, or be seen to be, a fair person (see next paragraph).

Self-presentation[5]

Interviewees are not impartial reporters, and Barnett Pearce warns researchers to watch out for the work language is doing: ‘The world is made, not found.’[6]  An interview is a unique social event and it is reasonable to ask why participants chose some themes and not others.  What were they up to?  What did they want me to understand?

I noticed most tended to answer a question I hadn’t asked: ‘What kind of person are you?’  They seemed particularly keen to portray themselves as fair; e.g. ‘I’m fair … it’s my personal position, you know what I mean’ or ‘I said, this is where I will meet and I said, I think this is fair.’   This self-presentation may play an important role in mediation’s success.  People generally[7] want to see themselves as fair; they probably want the interviewer (me) to see them as fair; and there is a good chance they would also like the mediator to see them as fair.  Perhaps this is why mediation’s success rates and compliance are often greater than sceptics anticipate.

Conclusion

I am not suggesting that these non-lawyers had suddenly developed the capacity for legal reasoning.  Rather, my goal was to counter the ‘reflex dismissal of non-lawyers’ capacity for justice.’[8]  This research reminds us that law and justice are not identical.  A lack of training in legal reasoning does not necessarily mean a lack of interest in or capacity for justice reasoning.

What makes mediation challenging and interesting is that, at least at the low-value end of the justice system, it provides people with the opportunity to determine not only the outcomes to their disputes, but the criteria by which those outcomes are evaluated.  It turns out those criteria amount to more than simple self-interest and include a strong urge to be seen as a fair person.

Paying more attention to ordinary people’s justice reasoning may provide valuable clues about the sort of societal norms on which any legitimate legal order must be based.  In the article I argue that theories of justice would do well to take account of this reasoning, proposing that natural law theory’s emphasis on human rationality explains mediation outcomes better than legal positivism, with its emphasis on state backed rules.  Far from being one of mediation’s drawbacks, giving lay people a voice in justice may prove one its most important contribution.

References

[1] Irvine C, ‘What Do “Lay” People Know About Justice ? An Empirical Enquiry’ [2020] International Journal of Law in Context 1-19, DOI 0.1017/S1744552320000117

[2] I summarise the main themes in the article, pp. 2-7.

[3] For example: Charkoudian L, Eisenberg DT and Walter JL, (2017) ‘What Difference Does ADR Make? Comparison of ADR and Trial Outcomes in Small Claims Court’ 35 Conflict Resolution Quarterly 7-45

[4] See Irvine C, (2012) ‘Scotland’s “Mixed” Feelings about Mediation’ SSRN e-library https://ssrn.com/abstract=2713346

[5] Goffman E, (1959) The Presentation of Self in Everyday Life (London: Penguin Books)

[6] Pearce WB, (2006) ‘Doing Research From the Perspective of the Coordinated Management of Meaning (CMM)’ Available from: https://www.taosinstitute.net/Websites/taos/files/Content/5692988/Overview_of_CMM_in_Research_version_2.0.pdf  (accessed 10 June 2018), p. 7

[7] At least as far as these unrepresented people were concerned.  I interviewed two legal professionals later in the study, and both appeared to regard fairness and justice as puzzling and none of their business.

[8] Irvine 2020 (n. 1) p. 1

New Milestones for the Australasian Dispute Resolution Research Network

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It is now nearly five years since the Australasian Dispute Resolution Network blog was founded in late 2013.

Since that time we have now built up a loyal following of over 10,000 readers, plus additional subscribers through our Twitter presence.    To all of you who have supported us, thankyou!

Associate Professor Becky Batagol, who has served  tirelessly as our Editor-in-Chief for the past five years,  has handed stewardship of the blog to another long-time supporter of the Network,  Dr Olivia Rundle.

As always, the blog remains the primary means of communicating the work of the Australasian Dispute Resolution Network.    We consciously do not maintain any other burdensome administrative structures, such as a formal membership structure or mailing lists.  You can read more about our policies here.   We welcome and encourage participation from anyone wishing to disseminate research about dispute resolution and especially encourage PhD students and emerging academics to participate – and we are not limited to Australasia.   If you would like to become a guest blogger, or a permanent member, please contact Olivia.

We look forward to this next phase of evolution for the Network and the blog,  thank Becky for her hard work and welcome Olivia!

Show me the money! The new Australian Financial Complaints Authority

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In just a few weeks, the three pillars of Australia’s financial dispute resolution architecture will be rolled into a single new body – the Australian Financial Complaints Authority (AFCA).

From 1 November 2019, AFCA will replace the Financial Ombudsman Service (FOS), the Credit and Investments Ombudsman (CIO) and Superannuation Complaints Tribunal (SCT).

As the AFCA website explains, the body will be funded by its members – i.e. Australian financial providers – with the amount payable by a particular provider being a combination of a base subscription and usage based charges.  This is a mechanism common to industry-funded schemes, and is designed to promote effective internal dispute resolution by providers, and ensures that complainants (consumers and small businesses) can access the scheme free of charge.

The jurisdiction and powers of AFCA are set out in its Scheme Rules.  One notable, and beneficial, feature of AFCA is its power to deal with systemic complaints alongside individual disputes, to order that changes be made, and to report AFCA’s findings to government bodies such as ASIC, the ATO and APRA (the Australian Prudential Regulation Authority).

Dispute resolution practitioners may also be interested to know that AFCA has advertised a number of positions at various levels in both Sydney and Melbourne.  Details here.

Image:  Pixabay, licensed for free commercial reuse.

Dispute resolution in the age of information – understanding the legal information experience

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We are said to live in the ‘age of information’, with a vast volume of possibly relevant information available to us for every single decision – from the purchase of an everyday item to the resolution of a complex family dispute.    This has led one commentator to remark  that this large amount of information makes us “like a thirsty person who has been condemned to use a thimble to drink from a fire hydrant.”[1]

Training and experience helps to enable lawyers to  identify information that is current, relevant to the jurisdiction, and authoritative.  However, how do unrepresented parties make sense of legal information?

This was the key research question in a project undertaken by myself and an interdisciplinary group of colleagues.   Funded by the Australasian Institute of Judicial Administration,  we examined how unrepresented parties involved in disputes engage with the information that they need to make sense of their legal rights and responsibilities.

The results of that research have been published in a series of forthcoming articles, including most recently in volume 27(4) of the Journal of Judicial Administration:

Jonathan Crowe, Rachael Field, Lisa Toohey, Helen Partridge and Lynn McAllister, “Understanding the Legal Information Experience of Non-lawyers: Lessons from the Family Law Context” 27(4) Journal of Judicial Administration 137.

What is “legal information experience”  and why does it matter?

Research into legal needs is not a new phenomenon – and it typically focusses on the prevalence of particular types of legal problems, the interaction between different types of legal problems, and the consequences of legal problems for the wellbeing (physical, mental and financial) of individuals.  An excellent example of  this type of research is the large-scale legal needs survey work of the Law and Justice Foundation  of NSW.

“Legal information experience” can be categorised as a subset of legal needs research, but it differs from much existing work on legal needs in its focus and methodology. While some legal needs studies may also consider the role of information, such as the sources that individuals have consulted in order to address their needs, this is usually from a perspective of satisfaction with the available options.

Research into the legal information experience, by contrast, focuses on the lived experiences of people accessing legal information, including how they locate sources of information, engage with those sources and use them to understand their situations.   It uses  a qualitative, interpretive research method based on in-depth interviews with a smaller sample of participants.  This approach is used to gain a detailed understanding of a participant’s unique perspective and to reveal the meaning of the experience from their point of view.[2] It therefore represents a useful complement to larger legal needs surveys in unravelling the complexities of how to best facilitate access to justice.  

Our study of legal information experience identified five key issues:

  1. Complexity: Parties struggle with the complexity of the information experience;
  2. Credibility: Parties have difficulty in assessing the credibility and reliability of sources of information and the information provided;
  3. Preferences: Parties indicate clear source preferences, which are not the same preferences that lawyers might expect;
  4. Application: Parties have difficulty applying the information retrieved from various sources to their individual situation; and
  5. Language: Parties tend to use language that is no longer reflected in family law legislation or practice.

Each of these aspects of  legal information experience has implications for how legal information can be provided, communicated and interacted with by both experts and non-experts alike.  It also offers insights into how to optimise interactions between experts and non-experts.

In subsequent blog posts we will expand on these findings  and the implications for dispute resolution practitioners, lawyers, and others involved in the communication of legal information.

 

 

Footnotes

[1]RS Wurman, Information Anxiety 2 (Que, 2001) 15

[2]S Kvale and S Brinkmann, InterViews: Learning the Craft of Qualitative Research Interviewing (SAGE, 2nd ed, 2009).

 

Image Credit: wuestenigel (https://www.flickr.com/photos/30478819@N08/30155035707/) Flickr via Compfight (http://compfight.com) cc (https://creativecommons.org/licenses/by/2.0/)