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We now know the date as well as the location of the next National Mediation Conference. Now’s the time to put it on your diary. NMC is a practitioner-focused conference with a strong academic edge, covering all areas of dispute resolution. You can see the details of the last NMC here.
The next NMC will be held in Alice Springs, Northern Territory from 1-4 September 2021. Importantly, the conference will be hosted on the grounds of Desert Knowledge Precinct, a beautiful 73 hectare property on the South Stuart Highway, 8km south of the Alice Springs CBD.
A copy of the press release from Prof Laurence Boulle, Chair of the NMC is posted below. Both Laurence and Alysoun Boyle are members of the ADRR Network and are planning the 2021 conference.
The directors of the National Mediation Conference Ltd acknowledge the Traditional Owners of country throughout Australia, and in the context of this announcement especially the Western Aranda and Central Arrernte peoples of the Alice Springs region. We recognise their connection to land, waters and culture, and we pay our deep respects to their Elders past, present and emerging.
In this regard the NMC is delighted to announce that the Desert Knowledge Precinct Partners (Centre for Appropriate Technology, Batchelor Institute of Indigenous Tertiary Education, Desert Knowledge Australia and the Desert Peoples Centre) have issued an invitation to us and the dispute resolution community to hold NMC 2021 at their facilities in Alice Springs (https://www.dka.com.au/activities/dk-precinct).
The NMC directors have accepted this invitation and would also like to acknowledge the valuable assistance from the Northern Territory Business Events Support fund for NMC 2021.
The Welcome Reception for the conference will be on the evening of Wednesday 1 September 2021 and the event will run over the following three days, namely 2, 3 and 4 September. In setting these dates the NMC Board has taken into account the timetable of The Ghan train from Adelaide to Alice Springs, and return.
Please save these dates and spread the word for an innovative, stimulating, and inspiring conference in the heart of the country.
The NMC Board is currently appointing a Design Committee to plan the conference and is commencing a formal process for selecting a Professional Conference Organiser. In due course, the Design Committee will start providing regular updates on all aspects of the conference.
Now it’s time to Save the Date and start preparing for a superb engagement in a wondrous setting.
Joanne Law is a registered Family Dispute Resolution Practitioner, NMAS Accredited Mediator, Certified Family Group Conference Facilitator and New Ways for Families Coach. She’s owner of Mediation Institute, established in 2013 to provide eLearning for the dispute resolution industry, with a human touch.
She is a professional trainer and co-founder of the not-for-profit Interact Support established to prevent family violence and abuse by providing accurate information and dispute resolution services for people who are slipping through the cracks in the family law system.
Joanne records a podcast called Mediator Musings which you can find on iTunes and other podcast distributors and is curator for TEDxCasey in South East Melbourne.
Our Earth planet and modern life. Elements of this image are furnished by NASA
The benefits of technology assisted training in dispute resolution
Using education technology is a rapidly growing approach to human learning. The dispute resolution education industry is not immune this trend and eLearning is now well established by pioneering organisations such as Mediation Institute.
The traditional approach to mediation training gathers people into a room for a workshop with lecture style instruction on new material and role plays in an intensive training environment.
Studies that compare classroom instruction, eLearning and blended learning indicate that eLearning and especially blended learning are at least as good as, and when well-designed, outperform classroom instruction alone. The major factors in eLearning that provide these benefits are realistic practice, spaced repetitions, contextualised meaningful scenarios and feedback.
There have been various studies and meta studies such as Means and Colleagues 2013—Meta-Analysis which conclude “eLearning-only situations produced an equal amount of learning compared with classroom-only situations. Blended learning (a combination of both classroom and online learning) produced better results than classroom-only instruction.”
It makes sense to use of technology to support learning in terms of cost, accessibility and flexibility. Mediation Institute delivers courses either fully online or via blended learning where there is no adequate way to simulate through video meeting. Our Family Group Conference Facilitation course is one where the skill to learn is facilitating a group meeting which takes place face to face.
It is important to design learning for eLearning and not just put offline material online.
What is online learning?
Online learning or eLearning is a form of education whereby the primary delivery mechanism is via the internet (Bates 2008) It is more than an evolution of the distance learning correspondence course and when well-designed makes use of technology in a unique way. The use of a website to deliver PDF content is still available and called online learning but that kind of approach gives eLearning a bad name, and promotes a bad student experiences and high drop out rates.
E-learning includes the use of a learning management system to provide course content, the opportunity to blend audio and video material, conduct quiz’s and assessments and to engage in on line recorded and live classes with other students.
Three of the biggest advantages we see for students in online learning are individualised learning, better feedback delivery and helping our learners to be better prepared for the future in the industry which we firmly believe will have a much greater presence of Online Dispute Resolution.
Individualised Learning
The accessibility and flexibility of elearning means that learning can be individualised . In the case of skills learning activities can be reduced down to the minimum number of participants to participate in a role play.
We are eagerly awaiting the time when Virtual Reality and Artificial Intelligence is sufficiently advance and affordable to allow us to provide individualised simulation opportunities for students. Till then with three students and a mentor and two hours to spare they can participate in a role play from wherever they are, providing they have access to the internet.
We favour asynchronous learning where possible, which means is that students can start their studies with Mediation Institute when they are ready to start, move through the course at their own pace and book in to do their role plays when they are ready.
There is real time learning in webinars and role plays but the rest of the course is self-paced with discussions via a forum where they can read other students’ entries and contribute in their own time. Semesters, course start dates and set assessment are for the convenience of educational institutions and provide no benefit for students, apart from a bit of extrinsic motivation. This flexibility means that we are tracking at 95 – 100% completion rate, depending on the course.
Individual support starts when a new student joins a course as we can use web meeting technology to offer individualised student orientations. In the session we hand over control of screen sharing to the student so they can navigate the course on their computer and the mentor can guide them remotely. Students book in for sessions like this using an online booking calendar tool that lets them schedule a session and insert it into the mentor’s calendar.
The other benefit of this individualised approach to learning is that the first role plays that they participate in are with students who have already participated in three role plays as a role player before their first role play as a mediator. In workshops the first role plays are often short and very messy due to everyone struggling to understand the new information they have just been presented with and a lack of good examples to work from. All of the role plays our students participate in are scheduled for two hours and provide the opportunity for tailored mentoring based on the needs of the student who is learning their new skills.
We use flipped learning which means that the theory learning takes place using online learning before interactive webinars, role play sessions or workshops. The students will have already completed some or all of the theory part of the course and ideally have had time to integrate what they have learnt as role players well before they attempt to use the skills as the facilitator.
This isn’t possible in a workshop as the time constraints of the schedule mean that the delivery pace is usually going to be too fast or too slow for the majority of the group. People get pushed through to role playing being a mediator with an incomplete understanding of the knowledge they need and sometimes struggle to even remember let alone understand the content and effectively translate it into competent role plays for their final assessment.
Our learning approach means that students are competent by the time they reach their assessment 95% of the time. For the small number who are not we offer further coaching and the opportunity to be re-assessed.
Better feedback delivery
Being a competent mediator is a unique skill building on interpersonal skills that most students already have. Learning how to mediate requires an adjustment in mindset and approach. Our experience is that students are often older learners who are very competent in roles where they give advice or advocate for clients. They may be used to working with a certain type of client, for example victims of family violence and have to learn how to work with other people in a non-judgemental way in order to facilitate a fair process while still using judgement in order to ensure that the process is physically and emotionally safe. It is complex work.
Approximately one third of our students are legally trained, another third are counsellors, psychologist or social workers and the rest from a business or other background.
They need to learn the mediation process, why the process developed and what each part of it does to help people to negotiate more effectively and how to be non-judgemental and empowering in their facilitation styles.
The benefit of doing our role plays using video mediation is that students can record their role plays and review them to help them to take in the feedback from their mentor.
Unconscious bias, poor questioning or failing to use active listening effectively and other problems can be pointed out and then they can review their role play to observe themselves.
I still remember the cognitive resistance that I and other learners had when I learned mediation in the traditional way, there was no action replay available to us! Sometimes we thought the mentor must have been mistaken in their feedback or struggled to understand it, impeding our learning.
Better prepared for the future
Online mediation is a growing trend that will continue to grow as more and more “digital natives” take up roles in business and become clients for mediators. Communicating electronically using video meeting technology is already becoming common.
I’ve already seen this trend in my own career as a dispute resolution professional and in the not-for-profit run, Interact Support.
Our policy is that if there is a family violence order in place, we don’t offer offline services. The options are video mediation, video shuttle mediation or mediator facilitated negotiation. The majority of our clients either seek out or accept video mediation even if family violence isn’t a factor in their relationship breakdown.
The use of legal tech is also going to be a major trend in our industry.
We train our CHC81115 – Graduate Diploma of Family Dispute Resolution students using Legal Tech software such as the Detection of Overall Risk Screening tool (DOORS) and FamilyProperty for their property FDR mediation simulations. We believe that it is important to ensure that new mediators are comfortable using technology with clients. Those who go on to do their fifty hours work placement with Interact Support are already prepared to work effectively with clients using video mediation and Family Property for their mediations and will be learning how to use MODRON for case management.
We’re currently developing a course on mediation case management which will be built around the MODRON online dispute resolution software.
The tool helps us to manage case management for our low income and community mediation programs.
We are firmly in the information revolution now that knowledge can be captured, digitally transported and used later. We are at an equivalent stage to the start of the industrial revolution when they were first able to capture energy and transport it for later use in the industrial revolution.
My concern is that many mediators are caught up in the same sort of thinking that the Luddites used when trying to hold back the tide of industrialisation in the 19th century. Resisting advances in technology due to the belief that it will threaten jobs is almost a self-fulfilling prophesy while embracing and using the technology to amplify our human capability ensures we remain relevant as dispute resolution professionals.
Failing to do that will see a continued advance of the use of Artificial Intelligence (AI) to replace human decision making and facilitation of dispute resolution processes.
Alternative Dispute Resolution is increasingly being required to be used before litigation and Online Dispute Resolution (ODR) is providing low-cost and independent dispute resolution in a much more accessible way that the traditional approach with its mediation rooms and waiting lists.
A Victorian Civil and Administrative (VCAT) ran a pilot in 2018 on ODR powered by MODRON to evaluate a hypothesis that “If VCAT introduces online dispute resolution then the Victorian community will experience improved access to justice.” You can watch a brief overview here https://youtu.be/LTkT9Z7cn9c on the pilot.
Mediation effectiveness doesn’t depend on the way it is delivered, what matters more is that it is available when it is needed rather than allowing disputes to continue to escalate.
When it comes to learning effectiveness, it is not whether the learning is delivered in eLearning or classroom instruction, it is the quality of the training that makes the difference.
Poor quality training in either context is going to be poor quality training.
Technology enables better quality training by making it easier to be more individualised, more flexible and provide better feedback and more realistic simulations. Anything that moves away from presenting information via a lecture and expecting a group of people to learn at the same pace is a positive improvement.
The research shows that it is essential to present to learners’ realistic scenarios for decision making, spaced repetitions over time to ensure retention, real world context through simulations and high quality feedback on their individual performance.
Online learning provides the opportunity to give learners these opportunities more effectively.
In his blogpost of December 2019, Alan Limbury gives us a thoughtful reminder of the history and background to the GPC.
I too was in the audience at London’s historic Guildhall on October 29, 2014, when IMI gathered together users of mediation, lawyers, mediators, academics and others involved in dispute resolution processes and began an exploration that led to the GPC Series conducted between March 2016 and July 2017 and travelling through 28 events in 22 countries.
Interior of the Great Hall, Guildhall, London
I have followed the Series carefully, attending the first in Singapore, the last when it returned to the Guildhall and the Sydney event somewhere in the middle.
Conceived and driven by IMI with the support of sponsors from around the globe, the Series was extraordinarily ambitious for a range of reasons – most remarkable being the ambition ‘to generate conversation and collect actionable data that could be used to shape the future of commercial dispute resolution (DR) and access to justice’.
The vision contemplated the collection of both quantitative and qualitative data – a bold ambition indeed. The qualitative and quantitative data were collected on the day via specially developed software accessed by participants. The results from the quantitative data, that is the 20 multiple choice questions, were displayed immediately in charts generated by the software, provoking significant discussion among participants.
The results of the qualitative data, that is the 13 open text questions, took significantly longer to analyse – for very good reason given the extraordinary rigour and precision required for analysis of this kind.
The significance of the report. The North America Report consolidates 7 individual reports of events in the series across North America. It is the result of rigorous and ground-breaking qualitative research on the data emerging from the open text questions. As the Report notes: ‘The GPC generated considerable data using methods not previously considered, in ways not previously possible, and at an unprecedented scale across the globe….and is the largest undertaking of its kind in the history of commercial dispute resolution’.
The call to action identified 6 top priorities. We will see a lot of attention paid to them as the Report gains the exposure it deserves. But there is a lot more.
My key take-outs: • Quantitative and qualitative research are very different.
Quantitative research matters. The results are relatively easy to consolidate and technology makes the process very efficient. Early release of results supports stakeholders seeking quick answers. However multiple choice questions reflect closed questions devised by their authors with a pre-determined choice of responses. There is always the risk that those answering the questions are choosing the best from a limited set of answers rather than making a ‘real’ choice. Open text questions offer some structure but allow what participants really think to emerge. This can produce the expected and the unexpected – telling the participants’ stories. It can also confuse us, producing richer information which apparently contradicts the quantitative data.
However the deep-dive into data required by qualitative research is extremely complex and time consuming. We had to wait a long time for this report to be produced so meticulously and now it is in our hands we can say it was worth it!
• We now have a new model of what qualitative research can do and how to go about it.
The methodology used to analyse the data and produce the report is not new but it is new to the DR arena. It is a result of the rich cross-disciplinary research experience of the authors of the report, Danielle Hutchinson and Emma-May Litchfield of Resolution Resources. It promises a new model of interdisciplinary thinking not constrained by academic backgrounds. It models how we can draw on psychometrics that have proven so robust and effective in the fields of education and psychology – a great addition to the DR research repertoire.
• It is time to lose the ‘A’ in ADR in the pursuit of a ‘party-centric approach to dispute resolution’
This was one of the top priorities identified in the call to action. It struck a particular chord with me as I have spent many sessions with my university students dealing with the challenge of answering the question ‘What is ADR and where does it fit?’ Many of us have struggled for a long time to take the ‘A’ out of ADR. We have tried using ‘appropriate’ and we have tried to replace ‘A’ with ‘C’ for consensual, but these attempts have not been successful. This report suggests that DR is the appropriate acronym for the suite of services covering adjudicative and non-adjudicative processes. Choosing the process or combination of processes that best meets what parties ‘need, want and expect’ is the element that provides the opportunity for a party-centric approach even if the process itself, such as litigation, is not seen as party-centric.
• We are not a unified DR community
The report consolidates findings from the 7 individual reports from
Austin, Baltimore, Los Angeles, Miami, New York, San Francisco and Toronto. Whilst the 6 elements of the call to action appear consistently, diving deeper into the individual reports I was struck by the significant differences in the details of practices and perceptions.
My take away is that we are a collection of individuals who have quite unexpected differences. The 7 individual reports demonstrate we are not united.
Our differences are likely to persist and it would be easy to see this as an impediment to collegiality. Our challenge is to build ‘an ability to deal well with differences’ – the definition of a good working relationship from Harvard’s Program on Negotiation.
What’s next?
I am still digesting the Report and I am sure I will continue to find more treasure.
I also expect more blogposts continuing to explore this very important research.
May the conversation continue and heartiest congratulations to IMI and Resolution Resources.
For more information about the GPC and its sponsors visit the IMI website.
I am thrilled to share this post by Dr Rosemary Howell which first appeared in the Kluwer Mediation Blogof February 22nd, 2020.
I would like to take the opportunity to thank Rosemary for her continued support and important contribution to the Global Pound Conversation.
By Dr Rosemary Howell
In his blogpost of December 2019, Alan Limbury gives us a thoughtful reminder of the history and background to the GPC.
I too was in the audience at London’s historic Guildhall on October 29, 2014, when IMI gathered together users of mediation, lawyers, mediators, academics and others involved in dispute resolution processes and began an exploration that led to the GPC Series conducted between March 2016 and July 2017 and travelling through 28 events in 22 countries.
Interior of the Great Hall, Guildhall, London
I have followed the Series carefully, attending the first in Singapore, the last when it returned to the Guildhall and the Sydney event somewhere in the middle.
Conceived and driven by IMI with the support of sponsors from around the globe, the Series was extraordinarily ambitious for a range of reasons – most remarkable being the ambition ‘to generate conversation and collect actionable data that could be used to shape the future of commercial dispute resolution (DR) and access to justice’.
The vision contemplated the collection of both quantitative and qualitative data – a bold ambition indeed. The qualitative and quantitative data were collected on the day via specially developed software accessed by participants. The results from the quantitative data, that is the 20 multiple choice questions, were displayed immediately in charts generated by the software, provoking significant discussion among participants.
The results of the qualitative data, that is the 13 open text questions, took significantly longer to analyse – for very good reason given the extraordinary rigour and precision required for analysis of this kind.
The significance of the report. The North America Report consolidates 7 individual reports of events in the series across North America. It is the result of rigorous and ground-breaking qualitative research on the data emerging from the open text questions. As the Report notes: ‘The GPC generated considerable data using methods not previously considered, in ways not previously possible, and at an unprecedented scale across the globe….and is the largest undertaking of its kind in the history of commercial dispute resolution’.
The call to action identified 6 top priorities. We will see a lot of attention paid to them as the Report gains the exposure it deserves. But there is a lot more.
My key take-outs: • Quantitative and qualitative research are very different.
Quantitative research matters. The results are relatively easy to consolidate and technology makes the process very efficient. Early release of results supports stakeholders seeking quick answers. However multiple choice questions reflect closed questions devised by their authors with a pre-determined choice of responses. There is always the risk that those answering the questions are choosing the best from a limited set of answers rather than making a ‘real’ choice. Open text questions offer some structure but allow what participants really think to emerge. This can produce the expected and the unexpected – telling the participants’ stories. It can also confuse us, producing richer information which apparently contradicts the quantitative data.
However the deep-dive into data required by qualitative research is extremely complex and time consuming. We had to wait a long time for this report to be produced so meticulously and now it is in our hands we can say it was worth it!
• We now have a new model of what qualitative research can do and how to go about it.
The methodology used to analyse the data and produce the report is not new but it is new to the DR arena. It is a result of the rich cross-disciplinary research experience of the authors of the report, Danielle Hutchinson and Emma-May Litchfield of Resolution Resources. It promises a new model of interdisciplinary thinking not constrained by academic backgrounds. It models how we can draw on psychometrics that have proven so robust and effective in the fields of education and psychology – a great addition to the DR research repertoire.
• It is time to lose the ‘A’ in ADR in the pursuit of a ‘party-centric approach to dispute resolution’
This was one of the top priorities identified in the call to action. It struck a particular chord with me as I have spent many sessions with my university students dealing with the challenge of answering the question ‘What is ADR and where does it fit?’ Many of us have struggled for a long time to take the ‘A’ out of ADR. We have tried using ‘appropriate’ and we have tried to replace ‘A’ with ‘C’ for consensual, but these attempts have not been successful. This report suggests that DR is the appropriate acronym for the suite of services covering adjudicative and non-adjudicative processes. Choosing the process or combination of processes that best meets what parties ‘need, want and expect’ is the element that provides the opportunity for a party-centric approach even if the process itself, such as litigation, is not seen as party-centric.
• We are not a unified DR community
The report consolidates findings from the 7 individual reports from
Austin, Baltimore, Los Angeles, Miami, New York, San Francisco and Toronto. Whilst the 6 elements of the call to action appear consistently, diving deeper into the individual reports I was struck by the significant differences in the details of practices and perceptions.
My take away is that we are a collection of individuals who have quite unexpected differences. The 7 individual reports demonstrate we are not united.
Our differences are likely to persist and it would be easy to see this as an impediment to collegiality. Our challenge is to build ‘an ability to deal well with differences’ – the definition of a good working relationship from Harvard’s Program on Negotiation.
What’s next?
I am still digesting the Report and I am sure I will continue to find more treasure.
I also expect more blogposts continuing to explore this very important research.
May the conversation continue and heartiest congratulations to IMI and Resolution Resources.
For more information about the GPC and its sponsors visit the IMI website.
When it comes to court connected mediation (CCM) it is useful to make a differentiate between the process which takes place in the room and the process which takes place outside of the mediation room. Many CCM programs will arguably use NMAS as the foundation of what happens in the mediation room. However, they will all have different out of the room process. These out of the room process add to the context and environment that the inside the room process takes place and has the potential to have an impact. It is within in this frame of reference that I would like to introduce and discuss a relatively new model of mediation known as Fast Track Mediation and Hearing (FTMH) and focus the discussion on the out of room process and environment FTMH takes place in and how they may impact the mediation, parties and mediator.
Background
The FTMH program was developed in response to a recommendation in the Access to Justice Review. [LINK] The FTMH is a partnership between the Victorian Civil and Administrative Tribunal (VCAT) and the Dispute Settlement Centre of Victoria. The program started in September 2017 with a staged roll out over four years. As of March 2020, will be offered in eight locations across Victoria with the VCAT on King St in the CBD the main location.
Jurisdiction
The program will meditate goods and services disputes that have a value of between $500 and $10,000.
Objective
To resolve and if not finalise disputes as quickly as possible.
Process
Appropriate disputes are identified and staff of the FTMH program will contact the parties. An intake will take place over the phone where the process will be discussed, and parties will be provided with information to allow them to be best prepared for the day where the matter will be resolved or finalised.
On the day, parties will arrive at VCAT and will go through a one-hour mediation. The in the room process is a NMAS based facilitative model. If the mediation results in an agreement, then terms of settlement are drafted and signed and the VCAT file is updated accordingly. If there is no agreement, then the parties are taken directly to the tribunal and their matter is heard by a VCAT Member who will make a determination. From the parties’ perspective they will leave VCAT with either an agreement reached in mediation or a determination from a VCAT member.
Unique Features and Impact
The FTMH program has a number of unique features which impact the mediation, parties and mediator including:
Front loading of time and costs: given that the parties will be going into a hearing and have the matter determined on the same day as the unsuccessful mediation, means that any costs will have already been spent prior to the mediation and there will be no further costs incurred to take the matter from mediation to a hearing. The same is the case for time. There will be no further time delay from mediation to a hearing.
Costs orders: VCAT is a generally a no costs jurisdiction. Which means that one of the key risks in matters of low value does not exist. Parties are not incentivised or at least they are less incentivised to settle as they do not risk having to pay the other parties legal costs if the hearing does not go their way.
Final agreement opportunity: The mediation in FTMH is the final opportunity for parties to resolve the dispute. They can not use the mediation as a fact-finding exercise or opportunity to test or hear the other parties offers. As there is no opportunity to continue negotiating if the mediation is not successful as the matter goes directly to a hearing and will be determined
Conclusion
This an exciting program that really addresses a need for disputing parties. It gives them the opportunity to try to resolve the dispute themselves but at the same time ensures that the dispute will be finalised on the one day allowing greater access to justice for disputing Victorians.
Much of the attractiveness of resolving disputes in CCM is the saving of time and money and mitigating costs orders. FTMH removes the delay and added costs generally associated with non-resolution of CCM. This has a potential impact on the incentives for parties to settle. It also limits the BATNA, WATNA and reality testing tools mediator would otherwise have in their tool kit. In time, I hope to do a research project to see what the actual impact the unique features have on the outcome and party satisfaction.
It is great to see continued innovation in the CCM space and it will interesting to see how this program develops.
This post is based on the article ‘Readiness for Family and Online Dispute Resolution’ by Nussen Ainsworth, Lisa Zeleznikow and John Zeleznikow. The article is published in the International Journal of Online Dispute Resolution 2019 (6) 2.
Readiness and Ripeness are important concepts in mediation. Much has been said about these concepts in the context of international conflict resolution.
Accordingly to Zartman, the key to successful conflict resolution lies in the timing of efforts for resolution. Parties resolve their conflict only when they are ready to do so when alternative, usually unilateral, means of achieving a satisfactory result are blocked and the parties find themselves in an uncomfortable and costly predicament. At that point, they grab on to proposals that usually have been in the air for a long time and that only now appear attractive. He argues that if the (two) parties to a conflict (i) perceive they are in a hurting stalemate and (ii) perceive the possibility of a negotiated solution, then the conflict is ripe for resolution.
Pruitt states that that readiness has two components, which combine multiplicatively:
Motivation (that is, a goal) to end the conflict, which is fed by a sense that the conflict is unwinnable or poses unacceptable costs or risks and/or pressure from powerful third parties such as allies.
Optimism about the outcome of conciliation and negotiation.
Wiget claims that various factors seem to be important for the prospects of success:
The parties’ willingness to settle the dispute (or at least to negotiate in good faith towards a settlement) is perhaps the most important factor of successful mediation.
The amount in dispute – An analysis of data from the Canton of Zurich indicates that the settlement rate falls dramatically with an increasing amount at stake.
The parties’ ability to value the case – when neutral evaluation can be offered.
In family mediation, there is no corresponding notion of readiness or ripeness. The reason for this is that parties have little choice regarding when to negotiate as one party will commence the family dispute resolution (FDR) process, generally without reference to the other party. If the other party refuses to participate in the process, court proceedings may commence. It might be a good idea to wait for anger to subside prior to commencing the FDR process. This allows parents to focus on the children’s best interests rather than haggling about relationship issues.
While there are well-developed theories as to when to try to mediate international conflicts, there is little similar research regarding family disputes. Further, the time dimension in family mediation can mean that mediators do not have the flexibility to wait for the appropriate moment for dispute resolution. Some suggestions include:
It might not be wise to conduct the FDR immediately after partners separate as it can be useful for the parties to receive some counselling.
It is useful to have the parties separate financial and children’s issues and to sort out their finances before FDR commences.
The FDR process tends to be more successful once the initial anger has dissipated.
Most importantly, mediations tend to be more successful once power imbalances have been addressed. This process may involve shuttle mediation and should occur only if no safety issues are present.
I.W. Zartman, ‘Ripeness: The Hurting Stalemate and Beyond’, in P. Stern and D. Druckman (Eds.), International Conflict Resolution After the Cold War, Washington, DC, National Academy Press, 2000.
D.G. Pruitt, ‘Readiness Theory and the Northern Ireland Conflict’, American Behavioral Scientist, Vol. 50, No. 11, 2007, pp. 1520-1541.
L. Wiget, ‘Compulsory Mediation as a Prerequisite before Commencement of Court Proceedings- Useful Requirement to Save Resources or Waste of Time and Money?’, UNSW Law Research Paper 47, 2012.
I am a Senior Lecturer in the Department of Business Law and Taxation at the Monash Business School, and completed my PhD at the Monash Law Faculty in 2015. I’ve previously worked at the Deakin Law School, and in private practice at Arnold Bloch Leibler Lawyers & Advisers.
Outside of university life, I live with my wife and daughter in Kensington: a warm and community-focused suburb apparently hiding fairly well within the otherwise-bustling inner city of Melbourne. When I’m in that grey zone in-between work and home, you’ll find me with headphones on listening to some great dispute resolution podcasts including The Arbitration Station and its spiritual predecessor, International Dispute Negotiation.
Ben’s Dispute Resolution Interests
My interest in dispute resolution was ignited by my participation, as an undergraduate law student, in the Willem C Vis International Commercial Arbitration Moot: a fantastic annual event held in Hong Kong and Vienna, where teams of law students from around the world argue an international sale of goods dispute within an international commercial arbitration setting. Having no prior exposure to arbitration, I was immediately fascinated by the fact that it is an alternative to State court litigation, yet is still anchored in the law: arbitrators aren’t judges and their decisions can’t be reviewed on the merits, but they still determine the facts and apply the law when resolving commercial disputes. After joining the Deakin Law School, I was fortunate enough to coach its Vis Moot teams for nine years, and really enjoyed the opportunity to introduce tomorrow’s lawyers to the world of arbitration as well.
International commercial arbitration also fascinates me because of its intersections with international sales law and private international law: much of my academic research has explored the overlap between these three areas of law.
Ben’s Research
My PhD is a good example of this: it addressed how arbitrators identify the law that they will apply, in an international commercial arbitration, where the parties have not included a choice of law clause in their contract. Undertaking my PhD research, and then its revision ahead of its publication as a book, was an interesting exercise in balancing some very different perspectives: on the one hand, that arbitrations are usually resolved on the facts, and on the other, that the applicable law can drastically affect the outcomes of cases. Since arbitrations are usually private/confidential, secondary sources made an important contribution to this work, though I also enjoyed the opportunity to delve into the world of published arbitral awards wherever I could, including extracts from International Chamber of Commerce cases.
In the dispute resolution space, I’ve published papers addressing Australia’s arbitration laws, as well as international commercial arbitration more generally. I’ve also got a keen interest in the United Nations Convention on Contracts for the International Sale of Goods, including its Australian implementation, and have several papers addressing these topics too. You’ll find many of my papers available on SSRN here, and I tweet about my research at @LawGuyPI here. I enjoyed the opportunity to present a work-in-progress paper at the ADRRN Roundtable held at La Trobe Law School in December 2019, and this project is still ongoing: I’m trying to reconceptualise the criteria we use to evaluate developments in Australia’s arbitration laws, with a view to informing future law reform initiatives. Thanks to all who attended my session for their very valuable feedback: I have lots of helpful suggestions to work on from here!
Engagement and Impact in Dispute Resolution Research
One of the things I find really great about arbitration law research is the opportunities I have to engage with private practice, and my work’s potential for professional impact. I’ve enjoyed several opportunities to contribute submissions to consultations on arbitration rules reforms, like this one here. I’m also aware that my publications have been used on several occasions to inform legal advice, and the conduct of cases. It’s a bit of a cliché to say that law journal articles are written just to be published, and not actually read: not true in the ADR field!
Next Steps
In addition to progressing the arbitration law project I presented at ADRRN 2019, I have a few other projects spanning arbitration law, sales law, and private international law in my research pipeline. I’m looking forward to staying connected with the ADRRN community and sharing the results of this work as it unfolds! If you have an interest in these areas yourself, you’re very welcome to get in touch: you can contact me at benjamin.hayward@monash.edu.
Australia’s catastrophic fires and weather events have dominated the news cycle for many months now. Fires, dust storms, hail storms and months of poor air quality have affected large tracts of land, including entire rural communities and major cities. Over 18million hectares of land has been burnt throughout the 2019/20 bushfire season already, and nearly 9,000 related insurance claims have been made.
The recovery period will involve many legal and financial claims involving insurers, charitable organisations, government and private citizens. Already many disputes have been reported in the news.
It is likely that many people whose property was lost or damaged were under-insured or not insured at all. Some of these people will find themselves in conflict with their insurers. Consumer group Choice’s advice on home insurance cover for bushfires illustrates many of the issues that may be misunderstood by people who have taken out home insurance and lead to disputes. Insurers have forecast a rise in premiums following the fires.
Donations to assist recovery from The Australian bushfires have been made by private citizens and companies both domestically and internationally. Donors expected that their donations would reach their intended recipients quickly and assist with recovery. However, some charities have been criticised for their slowness to distribute funds or aid, and also for the proportion of donations that they have retained for administration costs. Others have been restricted about what purposes they are able to use donations for, and have had to weigh competing priorities. Concerns have been raised about the difference between the intentions of donors and the purposes for which the recipient organisation is able to use the donated funds.
It is also predicted that many business affected by the bushfires will have disputes with their insurance companies over the coming months. Many business owners have “business disruption insurance” or “loss of attraction insurance” but lack clarity about what exactly is covered by these kinds of policy. Indirect consequences of natural disaster may not be sufficiently covered. Some policies cover lost profits and not turnover.
“Profit is very different from turnover,” Keane told The Sydney Morning Herald. “You may get people coming in expecting half a million [in cover] across 12 months and getting much less. The person is quite often incredibly traumatised if claims have gone off track at that point and they feel like it’s them against this massive company.”
Several dispute resolution processes are available to assist people to manage post-disaster conflict. Processes applying to insurance and tenancy disputes are explained below.
Disputes between Insurer and Insured
The Australian Financial Complaints Authority (AFCA) assists claimants who have a dispute with their insurance company. AFCA has activated a dedicated hotline 1 800 337 4443 to ensure priority service for people affected by the bushfire crisis.They also have a dedicated online information hub and representatives physically in affected areas. AFCA is frequently asked to mediate financial disputes arising from natural disasters, and can assist in relation to business as well as home losses.
“AFCA is an ombudsman service that provides free, fair, and independent help with financial disputes,” said Justin Untersteiner, AFCA chief operating officer. “If you’re affected by the bushfires, and you find yourself in a dispute with your insurer or financial provider about a claim or request for assistance, AFCA can help resolve it. We have special processes that identify and fast-track complaints from people, primary producers and small businesses in impacted communities, so we can assist you to resolve complaints as quickly as possible.”
AFCA has also triggered its significant events response plan in anticipation of damages of around $320 million following the catastrophic hailstorms that affected Melbourne, The Australian Capital Territory and parts of New South Wales on Monday 20th January 2020. The significant events response plan involves early communication with interested parties, and a more streamlined and expedited dispute resolution process.
Legal Aid Tasmania has published information for tenants affected by a natural disaster. Unresolved disputes need to be referred to the Magistrates Court of Tasmania, where conciliation processes are used prior to hearing.
Legal Aid Western Australia has also produced a fact sheet for residential and commercial tenants whose properties have been affected by natural disasters. Residential Lease disputes that the parties are unable to resolve between themselves can be referred to Tenancy WA (advice for residential renters) or the WA Department of Commerce – Consumer Protection for advice, with unresolved disputes going to the Magistrates Court of WA (mediation or determination). Commercial lease disputes can be referred to the Small Business Development Corporation (case management and mediation) or the State Administrative Tribunal (conciliation or determination).
Mediation, incorporating restorative justice principles, is increasingly being used in countries such as the United States of America to resolve civilian complaints against police. In most jurisdictions when civilians have grievances against police officers, they lodge complaints with the relevant police department which internally manages the complaint. Serious allegations are formally investigated while minor complaints are often conciliated, but complainants are often left feeling dissatisfied with the process that affords them no participation. However, the mediation and restorative justice movements have finally infiltrated the bastion of law enforcement. Police departments and oversight agencies are responding to the scientific evidence in the literature that says bringing complainants and police officers face-to-face in a safe and independently mediated forum to openly discuss their perspectives of an incident, is an effective way of resolving conflict. Unresolved conflict between civilians and the police has the potential to generate mistrust of police, which could result in more serious problems such as reluctance to obey the law.
An examination of two of the largest police departments in the United States – the Los Angeles and New York Police Departments, has revealed they are amongst the most high-profile, controversial and scandal-plagued police departments in the world. Since the start of 20th century, these police departments have been at the centre of police corruption inquiries related to prostitution, gambling, bribery, extortion and organised crime. Various public inquiries have resulted in the overhaul of complaints systems and the establishment of mediation programs to provide a fairer resolution process for the public. The police departments are aware of the damage to public confidence caused by police misconduct, and increasingly, racially-biased policing and discourtesy complaints, and have made rebuilding civilian-police relations a priority.
Yet, two problems exist. The first is the low number of complaints (10% of all complaints lodged) that are referred to mediation; and the second is getting complainants to participate in mediation once contacted. Many complainants are unaware of the mediation option and/or view it with mistrust. They see it as another process organised by agencies closely connected to the police. Yet, for those who do participate, mediation surveys (completed at the end of all sessions) reveal consistently high satisfaction rates with the process, including trust of the mediator and having the opportunity to be heard. More research into why complainants do not take up the option and how mediation may be better promoted would likely benefit all stakeholders and build trust.
This post is written by Mark Dickinson, PhD candidate at the University of Tasmania, and is based upon the paper that he presented at the ADRRN Roundtable in December 2019.
Introduction
This research project explores the assessment of suitability for Family Dispute Resolution (FDR) – a decision making process which is a primary responsibility of a Family Dispute Resolution Practitioner (FDRP) (See generally Family Law Act 1975 (Cth) and Family Law (Family Dispute Resolution Practitioners) Regulations2008 (Cth)). Before a joint FDR (mediation) session can be offered an assessment as to its suitability for the parties must first be conducted (Reg 25(1)). This discretionary assessment of suitability for FDR relies on the professional judgment of the individual FDRP. Using a mixed methods approach this research examines this assessment of suitability as undertaken by FDRPs working in a community-based, not for profit organisation in Tasmania.
From July 2007 the Family Law Act1975 (Cth) has required separated parents and others to make a genuine effort to resolve their parenting dispute at FDR prior to filing in the family courts (s60I – note exceptions apply). FDR is a non-adversarial, alternative dispute resolution process akin to facilitative mediation. Coinciding with this mandating of FDR, 65 community-based, government funded, Family Relationship Centres (FRCs) were established around the country to provide free or nominal cost FDR services. The majority of FDR takes place in FRCs (see Moloney et al, p238).
It has been observed that clients engaging at FRCs are increasingly presenting with complex needs (see also Smyth et al, 10-11). The mandating of FDR and the establishment of FRCs has led FDRPs to be considered “gatekeepers” to the family court system. As a result, the nature and complexity of cases dealt with in an FRC can vary considerably.
The test to be applied in assessing suitability for FDR involves a consideration of the “capacity of each party to negotiation freely” having regard to a range of factors including: any history of family violence; the safety of the parties; equality of bargaining power; risk of child abuse; and the emotional, psychological and physical health of the parties (reg 25(2)). Communications made to an FDRP during FDR are generally confidential (s 10H); and subject to a specific court order, practitioners are not required to provide reasons for the determination of suitability for FDR. This research aims to shed light on this important decision of the FDRP.
Rationale
One aspect of an FDRP’s competence in practice is the ability to effectively mediate a range of parenting disputes with varying complexity. It is argued that the greater the FDRP’s ability to effectively mediate complex (as well as less complex) matters, the higher will be the percentage of their caseload that they will assess as suitable for FDR and will proceed to a joint mediation session. FRC clients that are assessed as unsuitable for FDR are provided with a “section 60I certificate” to that effect and need to consider other options to resolve their dispute. Receipt of a s 60I certificate enables a party to file a parenting application in the family courts, though the cost of engaging a private legal practitioner in such proceedings is not a viable option for many. Research commissioned by Interrelate found that 41% of its surveyed FRC clients who received a not suitable certificate would have preferred to continue with FDR to resolve their dispute.
From a governmental perspective FDR is a cost-effective method of resolving family law disputes. An analysis by the Australian Government found that FDR conducted through FRCs and Legal Aid Commissions had a net cost per service of less than one fifth of the cost of matters finalised in the Family Court of Australia. Recent budgetary cuts to Legal Aid Commissions and Community Legal Centres are likely to reduce the number of clients having access to free or subsidised family law legal services. The recently published Australian Law Reform Commission Inquiry into the Family Law System supports the continued use of FDR. Within this context the Australian Government has shown an ongoing interest in exploring alternative outcome measures and funding models for FRCs.
A deeper understanding of the assessment of suitability for FDR using both quantitative and qualitative methods may support the adoption of the frequency of assessments of suitability for FDR as a further metric for measuring FDRP effectiveness in practice. Further research (beyond the scope of this project) may use the findings of this research to develop models for practice aimed at increasing the frequency FDR is assessed as suitable, and therefore of clients being offered a joint FDR (mediation) service.
Relationships Australia Tasmania
Relationships Australia Tasmania (RA Tas) operates all FRCs established in Tasmania, with centres in Hobart, Launceston and Devonport. RA Tas has provided in principle agreement to provide data for this research project. I was formerly employed by Relationships Australia Tasmania (“RA Tas”) as an FDRP and senior practitioner in FDR. In 2014 I conducted a pilot study at the Launceston FRC quantifying the number of section 60I certificates issued by its FDRPs. The pilot study suggested a significant variation between FDRPs of the frequency in which they assessed cases as unsuitable.
Research Questions
Having regard to the scope of the data sought, this research aims to answer the following research questions:
Is there a significant variation between FDRPs of the frequency in which cases are assessed as unsuitable?
What do FDRPs report they consider when assessing suitability for FDR?
Assuming a significant variation is found to the first question, what factors reported by FDRPs appear most relevant in explaining that variation?
Methodology Summary
The proposed research involves at least two phases. The first phase of this research will cover a five year period and quantify: all certificate types issued by RA Tas FDRPs; the number of cases allocated to each FDRP; and the number of cases that proceeded to a joint FDR session. This data should show what variation exists between FDRPs of the frequency in which they assess cases as unsuitable (and suitable) – expressed as a percentage of total cases.
The second phase of the research will involve in depth interviews with RA Tas FDRPs, supervisors and managers to explore the decision making process of assessing suitability for FDR and endeavour to explain the anticipated variation in the frequency of cases assessed as unsuitable by those FDRPs.
It is hypothesized that the assessment of suitability may be as much an assessment for the FDRP as it is of the clients. This assumes an FDRP conducts the assessment and that FDRP will conduct the FDR session if the case is assessed as suitable for FDR.
Interior of the Great Hall, Guildhall, London
The Australian Dispute Resolution Research Network 
