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.

John Lande discussing Litigation as Violence

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John Lande has posted a very thought provoking piece on his blog ‘Indisputably’, discussing a journal article by Professor Vincent Cardi from West Virginia University.   The article is entitled “Litigation as Violence”

Lande in his post brings in many of the themes that preoccupy those of us at the ADR Research network –  the importance of empirical research around litigation and dispute resolution, as well as themes of legal education in dispute resolution, litigant stress, and impact on the wellbeing of the legal profession.

Both the post and the article are well worth reading for legal educators, ADR practitioners and lawyers alike.

Jack Cranstoun Scholarship for Young Mediators

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The Dispute Resolution Branch of the Queensland Department of Justice and Attorney-General are offering a scholarship for two young people, one male and one female, to gain mediation skills and assessment for National Mediator Accreditation.  The Scholarship honours the memory of Jack Cranstoun, who was one of their staff.

Applications close 6th February 2015.

Full details here:

https://conflictresolvers.files.wordpress.com/2015/01/jack-cranstoun-scholarship.pdf

International Mediation Institute: Mediation news

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Dr Claire Holland's avatarConflict Resolvers Network

YMI_plain.1

Mediation Opportunities

Project Manager at ICC
The International Chamber of Commerce, Paris, is looking for a project manager (temporary replacement) to manage the upcoming 10th ICC Commercial Mediation Competition! Starting time is as soon as possible. Job is located at ICC´s headquarters in Paris. For more information, please contact: adr@iccwbo.org

Volunteer at ICC for the upcoming 10th ICC Commercial Mediation Competition
Willing to have an active role in the 10th ICC International Commercial Mediation Competition?
We are currently looking for volunteers who will help us for the logistics and registration, or as Mediation Session Supervisors. Do not miss this opportunity to be part of the Competition, meet peers from all over the world, celebrate the 10th anniversary and see the leading international professional mediators in action!
Contact us now at iccmediationcompetition@iccwbo.org, we will send you all the information and the application form!

Mediation Resources

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Mediating family matters where there is a history of violence.

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One of the most controversial aspects of mediation practice is its use with parties whose relationship has involved domestic violence, with critics pointing out the potential for a discussion based process such as mediation to reinforce the power imbalance, fear and voicelessness experienced by the survivor of domestic violence.    On the other hand, the potential benefits of mediation are clear, there is scope for the process to actively empower participants, and mediation holds a central role in Family Dispute Resolution in Australia under Part VII of the Family Law Act.

Dr Rachael Field,  Associate Professor at QUT Law, has recently published a piece with co-author Angela Lynch releasing the results of a pilot study, run by the Federal Attorney General, into a family mediation model specifically designed for use with parties with a history of domestic violence.

The piece is published in the Journal of Social Welfare and Family Law and is entitled  Hearing parties’ voices in Coordinated Family Dispute Resolution (CFDR): An Australian pilot of a family mediation model designed for matters involving a history of domestic violence   (link to open access).

This process was evaluated by the Australian Institute of Family Studies as being ‘at the cutting edge of family law practice’ because it involves the conscious application of mediation where there has been a history of family violence, in a clinically collaborative multidisciplinary and multi-agency setting. The authors conclude that Australian government’s failure to invest resources in the ongoing funding of this model jeopardises the safety and efficacy of family dispute resolution practice in family violence contexts, and compromises the hearing of the voices of family violence victims and their children.

Dispute Resolution on Facebook

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An interesting piece from the Harvard Program on Negotiation on some online dispute resolution mechanisms that Facebook is working on.

Facebook has created message templates that allow users to explain what they object to about a particular posts. For example, they can select options such as “It’s embarrassing” or “It’s a bad photo of me,” according to CNNMoney. Users are also asked to state how the offensive post makes them feel – such as angry, sad, or afraid – and how strongly they experience the emotions they report.

Teaching behavioural insights in dispute resolution

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As part of an ongoing research project,  I’ve been looking at the impact of behavioural insights on mediation (and dispute resolution more broadly).   By ‘behavioural insights’, I’m referring to fields such as cognitive neuroscience, behavioural economics, social psychology,  all of which have been recently made accessible to non-experts through popular books such as  Nudge, Thinking, Fast and Slow and Blink.   

This project is directed at a critical analysis of the impact of these fields on core concepts such as self-determination in mediation.   However, that’s a post for another day  (and in fact a forthcoming book chapter), where I explore the challenges of these fields for foundational concepts in mediation, such as self-determination and party autonomy.   

However, in the process of undertaking this research I have come across some very good teaching resources from the University of Texas’ Ethics Unwrapped site.   I plan to use these in my teaching this semester, as they offer some insights into cognitive biases that, as mediators know only too well,  are common to participants in disputes.      Some of the topics that I have found particularly useful include  –  loss aversion,  framing, and fundamental attribution error.

Link

Online mediation practice

An interesting new initiative from the  Association for Conflict Resolution Hawaii Chapter   is an online mediation service that works across a range of technological platforms and uses video conferencing.

The creator of the Virtual Mediation Lab describes its goals as being:

  1. To help mediators from around the world practice and improve their skills – for FREE (starting Monday, April 21, 2014) – by participating with a Coach and other mediators in online mediation simulations
  2. To teach mediators how to mediate online and integrate face-to-face, online and mobile mediation
  3. To promote mediation and online mediation around the world

As far as I can see, the arrangement is not entirely free, as there is a $5 charge to view videos.  However given the technology involved and the opportunity this interface presents,  a notional charge seems quite reasonable.

Many dispute resolvers have long dreamed of using technology to carry out mediations –  and technology seems finally to have caught up.  And yet, nothing quite matches the impact of real, face-to-face interaction.   For example, researchers have consistently shown that the delay and other features of video conferencing hamper the development of trust between parties – and of course this trust is critical for effective dispute resolution.    See, for example, Nguyen, David T., and John Canny. “Multiview: improving trust in group video conferencing through spatial faithfulness.” Proceedings of the SIGCHI conference on Human factors in computing systems. ACM, 2007.

If you have had any experiences of online dispute resolution, particularly using video conferencing,  we’d love to hear your impressions.

Link

Self-Represented Litigants – a Canadian study, needed in Australia too

Professor Julie Macfarlane from Windsor University in Canada is running a very interesting project on self-represented litigants.   Her blog post yesterday (2 February) brings to my attention a phenomenon I had simply never considered before –  the ’roundabout’ nature of many clients engaging with legal advisors –  they come and go when (if) they have funds available to pursue their case, and at other times may be self-represented.    The phenomenon of course is very wide spread – Macfarlane found that 53% of self-represented litigants commenced their actions with a lawyer.    It would be very worthwhile undertaking similar research in Australia –  I suspect the percentage might be even higher here.

Career opportunities in dispute resolution, Sydney

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Two outstanding career opportunities have come up in Sydney:

A new role as General Manager for LEADR   described in the position description in the following terms:

The GM (Aust) will be responsible to the CEO for managing the day to day operations of LEADR in Australia, will contribute to projects that have Australasia-wide application and will assist in identifying opportunities and relevant developments. The GM (Aust) will also work collaboratively with member committees and an energetic team to deliver a range of services to members, to raise business and community knowledge about ADR, to influence government and statutory authorities to promote the use of ADR and to encourage the continued development of ADR standards.

The Parramatta Community Justice Centre is also advertising a range of full and part time mediation advisors.  Again, from the position description:

Mediation Advisors are the first point of contact for clients and referrers seeking information regarding CJC services.  Mediation Advisors are responsible for assisting clients and referrers with their enquiries maintaining a high standard of individual client data entry and working as part of team.

Indigenous people’s experience of multiple legal problems and multiple disadvantage

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An interesting and valuable working paper has been published by the  Law and Justice Foundation of New South Wales, titled “Indigenous people’s experience of multiple legal problems and multiple disadvantage  — a  working paper.”

The working paper is based on data gathered in 2008 and published in the 2012  Legal Australia-wide Survey, which was self-described as a “comprehensive quantitative assessment across Australia of an extensive range of legal needs on a representative sample of the population. It examines the nature of legal problems, the pathways to their resolution, and the demographic groups that struggle with the weight of their legal problems.”

It revisits some of the 2008 data on the legal problems experienced by indigenous people, exploring the connections in more detail.     Table 1 (pasted below) encapsulates the key dilemma for indigenous people:  being indigenous statistically doubles your likely number of legal problems if you are female, and nearly triples them if you are male.  And, it doubles your number of substantial legal problems, which are defined as problems having a moderate to severe impact upon daily life. (See the survey report, page xvi).

Table 1 UJ36

Combine this with systemic socio-economic disadvantage,  and a lack of accessible legal infrastructure, it is clear that there is a desperate need for resources to be put into indigenous legal services.   As the report itself concludes, “The heightened vulnerability to multiple legal problems that occurs at an earlier age for Indigenous people, and continues through to middle age, may be yet another marker of the ‘wicked’ nature of Indigenous disadvantage in Australia.”

The full report is online at http://www.lawfoundation.net.au/ljf/site/templates/UpdatingJustice/$file/UJ_36_Indigenous_multiple_legal_problems_and_disadvantage_FINAL.pdf