The UNSW Law Faculty is full of surprises.
Headed by our energetic Dean, Professor George Williams, (whose weekly schedule leaves me exhausted) we have been lucky to attract accomplished academics with a remarkable diversity of talents.

Some years ago we persuaded Lisa Toohey to join us from the University of Queensland with her unusual combination of expertise in ADR and Trade Law.
Lisa has recently taken a role as Professor and Deputy Dean (Research) at the University of Newcastle’s Law School. Happily she has retained her relationship with UNSW in an adjunct role but has left a big pair of shoes to fill.

We are delighted that we have now been joined by Professor Amy Cohen – an accomplished international academic who is upholding our tradition of diversity with specialties in ADR and Food Law. Amy comes to us on secondment from the Moritz College of Law at Ohio State University.

Her CV is remarkable.
Amy has held visiting professorships at Harvard Law School; Osgoode Hall Law School; the University Of Turin Faculty Of Law; and the West Bengal National University of Juridical Sciences. She has held fellowships from the Radcliffe Institute for Advanced Study at Harvard University; the American Institute of Indian Studies at the University of Chicago; the Fulbright Program; and the Collegio Carlo Alberto. She has also been a visiting scholar with UNSW and with Cornell Law School.
Before joining the Moritz faculty, Amy taught at the Kathmandu School of Law in Nepal as a Fulbright scholar; clerked on the U.S. Court of Appeals for the Tenth Circuit in Denver, Colorado; and worked on community development initiatives in Ghana, Nepal, and Thailand.
Along the way Amy was a student and Teaching Assistant of Professor Frank E.A.Sander, whose work was a cornerstone of the development of ADR as we know it today.
She was recruited to join Ohio State University and has continued to be supported by the remarkable Professor Nancy Rogers – former Attorney General of Ohio; a former Dean of the Ohio State University Moritz College of Law  and the former holder of the Michael E. Moritz Chair in Alternative Dispute Resolution at the Moritz College of Law. Professor Rogers’ contributions to ADR in general and mediation in particular have been an international influence.

Her academic approach
Amy uses the study of informal dispute resolution to understand broader shifts in law and society. For example, her recent work has focused on alternatives in the US criminal justice system. One set of articles examines specialised prostitution courts in New York City in the wake of international anti-sex trafficking campaigns and criticisms of broken windows policing. They trace how misdemeanour criminal courts increasingly use informal and consensus-based procedure to administer new forms of social welfare and social control.

Her next work – a genealogy of American restorative justice, beginning with ‘new left’ activism in the 1960s and 1970s and tracing secular/religious, anti-statist/statist, left/right translations over time, including how today restorative justice has captured the attention of institutions devoted to principles of economic freedom and limited government (a recent blog post about that article is here).

We welcome Amy to the ADR Research Network and look forward to her joining us as a fellow blogger. She tells me she is eager to join local conversations about how “alternative” ideas and practices influence regulatory governance; criminal justice reform; and civil court practice.

This guest post has been contributed by network member Robert Angyal SC. Robert is a barrister, mediator and arbitrator. Mediation has been a substantial part of his practice since 1991. His publications include Chapter 13 in M. Legg (ed.) Resolving Civil Disputes (LexisNexis Butterworths 2016), “Advocacy at Mediation:  An Oxymoron or an Essential Skill for the Modern Lawyer?” This post is partly drawn from an earlier post on LinkedIn.

https://www.maxpixel.net/Muscles-Show-Popeye-Sailor-Man-Spinach-37118

1. Outline of post

This post presents some new ideas about the mediator’s role with respect to the power of parties in mediation, which it is hoped merit further research.  It provides a taxonomy of types of power possessed by parties in mediation and reflects on the relevance of these powers. It questions whether a mediator can in fact know where power lies in any particular mediation and points out that, even if this can be known, power is not static, but dynamic; it can move around over time. Some commentators contend that, where there is a significant imbalance in party power, mediators have a duty to level up the parties’ power; others assert that they have a duty not to do this. The post explains that this debate is entirely academic because, in practice, power-levelling is either impossible or prohibited. Nevertheless, and reassuringly, the post concludes by explaining that mediators can perform a very constructive role with respect to the parties’ power.  If they do, parties’ self-determination will be augmented.

2. A taxonomy of party powers in mediation

Power of parties in mediation comes in a variety of types. The following taxonomy almost certainly is not exhaustive.

Financial power: Big Bank v. Freddie Farmer: huge financial resources v. not very much at all.

Forensic power: Senior Counsel, junior barrister, law firm partner and employed solicitor v. suburban practitioner or no lawyer at all.

Substantive power: Party A’s case seems strong to overwhelming on the facts and the law. Party B’s case seems weak to hopeless.

Negotiating power: Party A is a sophisticated and experienced negotiator. Party B is an first-time participant in mediation. Party A has invested significant resources in preparing for the mediation. Party B has skimped on preparation in the hope of an early settlement. Party A is realistic about its prospects. Party B is wildly optimistic about its prospects. Party A does all the talking. Party B is interrupted/cut short.

Moral power: Party A’s position is in the public interest/promotes sobriety/will slow global warming. Party B’s position cheats widows and orphans/promotes tax evasion/threatens old-growth forests.

Gender power: Women may not ask for as much as men. Women “are more concerned with care issues whilst men are preoccupied by notions of justice” (Rachel Field, Mediation and the Art of Power (Im)Balancing, 12 QUTLJ 264 at 267 n. 21 referring to Carol Gilligan, “In a Different Voice: Psychological Theory and Women’s Development” Harvard Univ. Press, Cambridge 1982).

For a very different taxonomy, with eight categories of power, see Omer Shapiro, ”Exploring the Concept of Power in Mediation: Mediators’ Sources of Power and Influence Tactics” (2009) 24 Ohio State Journal on Dispute Resolution 3.

3. The relevance of power in mediation

Power is relative. If two Big Banks face off against each other, there probably will not be much disparity in power. If both parties to the dispute are female, there is no disparity in gender power.

Further, because there are different sources of power, a party’s power from one source may be either augmented or diminished by power from another source.  For example, Big Bank may possess enormous financial power but, in a particular mediation, it may have little substantive power (i.e., its substantive case is weak) and, because it is poorly represented, it may lack forensic power.  How in this situation one quantifies the overall power of Big Bank is beyond the scope of this post.

Power in mediation can be seen as the ability to get what you want from the other party. In the context of mediation, this probably means getting the other party to sign the settlement agreement that you want.

A party always has the right to end a mediation without agreeing to anything. Given a large disparity of power between the parties, however, this may not be a realistic alternative for the weaker party.  If it is not realistic, the greater power of the other party remains relevant.

4. Can the mediator know where power lies in mediation?

All theories requiring a mediator to take action with respect to unequal power of the parties are based on an implicit but unarticulated assumption:  That, in a particular mediation, the mediator can identify where power lies.

In practice, several factors constrain the mediator’s ability to do this.The factors include:

• The mediator has limited knowledge of the facts, knowing only what the parties have chosen to tell her/him.
• The mediator has limited knowledge of the relevant law.
• The mediator has limited knowledge of the parties’ interests and needs, again knowing only what the parties have chosen to tell him/her.
• Financial power: Big Bank has to make a profit. Throwing good money after bad makes no more sense for Big Bank than for Freddie Farmer. Having financial power thus does not necessarily mean that it will be exercised.
• Forensic power: There are good silks and not-so-good silks. There are some brilliant suburban practitioners.  And, in any event, the forum is a mediation, not an adjudication.
• Substantive power: How can the mediator, often with very limited information, understand the respective strengths of the parties’ positions?
• Negotiating power: This is partly within the mediator’s control.
• Moral power: Opinions on moral issues differ.
• As noted in the previous section, power from one source may be increased or decreased by the party’s power (or lack of it) from another source.

5. Power is not static; it can and does move around during the mediation

Even if a mediator is able to identify where power lies in a particular mediation, it may not remain there. Consider a farm debt mediation where the farm has been mortgaged to Big Bank and the mortgage payments are substantially in arrears.

As long as the value of the farm exceeds the amount borrowed plus accrued interest and costs, Big Bank can be uncompromising and will probably negotiate only about how much time the farmer has to pay the mortgage debt – failing which it will padlock the farm gate and put a “Mortgagee Sale” sign on it.  There seems no doubt where power lies.

If, however, it transpires that the value of the farm is less than the amount secured over it, the power relationship is quite different.  The bank’s legal powers are the same, but exercising them will result in the bank’s recovering only part of what it is owed. The farmer’s personal covenant on the mortgage probably is worthless.  A large amount may thus have to be written off. Heads may roll in the Rural Lending Department of Big Bank.

In the second scenario, the bank may become interested in all sorts of settlements that:

• Require the willing participation of the farmer;
• Require the bank (at least for now) to forego recovery;
• Require the bank to lend more money; and
• In effect, require a joint venture between Big Bank and the farmer.

Possibilities include:

• Subdivision of the farm for sale as hobby farms;
• Novel crops with high value like blueberries; and
• Investing in irrigation, pasture improvement, new barns, new dams and new fencing to improve the productivity and value of the farm.

In the second scenario, paradoxically, the farmer’s weakness has become a source of power.

Consider a simpler example: the mediation of a personal injury claim. The plaintiff, supported by cogent and thorough medical reports, claims to have an incapacitating and permanent back injury sustained at work.  Liability is not in dispute.  The plaintiff is in an obviously powerful position.

Then the defendant insurer produces a recent surveillance video, showing the plaintiff lifting weights at a gym. Power instantly shifts to the defendant.

The plaintiff then establishes that the video shows not him, but his twin brother, a triathlete. Power instantly shifts back to the plaintiff. 

6. Competing theories about power in mediation

There are two principal theoretical approaches to mediators’ duties in working with power imbalances.

Theory One: The mediator has a duty to balance the parties’ power

• One party to a mediation may be significantly more powerful than the other.
• A significant power difference between the parties may lead to one party dominating the process.
• A significant power difference between the parties may lead to a settlement that largely favours the more powerful party’s needs and interests.
• This is unfair. At the extreme, the result is coerced.
• One of the functions of mediation is to redress unequal bargaining power.
• The mediator therefore has a duty to the process and/or to the parties to try to balance the parties’ power in the mediation.

See, for example:  Ali Khaled Qtaishat, Power Imbalances in Mediation (2018) 14 Asian Social Science No. 2 75 at 79; Rachel Field, supra, at 269-270; James South, Heather Allen and Sean McTernan, Balancing Power in Mediation (CEDR – The Second European Mediation Congress) at 3, 4, 6, 9, 14; Amrita Narine “Power Imbalances in Mediation” Student Note, Harvard Negotiation Law Review 2017 at 9ff.

Theory Two:  The mediator has a duty not to balance the parties’ power

• Mediation theory and most mediation agreements require the mediator to be neutral and impartial towards the parties.
• “Neutrality” means that the mediator is disinterested in the outcome of the dispute.
• “Impartial” means that the mediator treats the parties in an equal and even-handed way.
• Disparities in bargaining power are a fact of life inside and outside the mediation.
• If the mediator were to take steps to lessen the power of the more powerful party or to increase the power of the less powerful party (or both), in order to affect the outcome of the mediation, she or he would not be acting in a neutral or an impartial way.
• The mediator therefore has a duty to the process and/or to the parties not to try to balance the parties’ power in the mediation.

See, for example, Rick Voyles, “Managing an Imbalance of Power” (2004); and Susan Douglas, “Neutrality, Self-Determination, Fairness and Differing Models of Mediation” (2012) 19 James Cook University Law Review 19.

7.  In practice, power-balancing is either impossible or prohibited

The debate between the two theories of power-balancing is fascinating but, it transpires, entirely academic.  This is because a practical and a legal problem prevent putting power-balancing into practice.

The practical problem:

If a mediator disclosed in their mediation agreement or at the preliminary conference that they intended to engage in attempts at levelling up the power of the parties, it is almost certain that they would not be hired as the mediator.  Why would a party spend lots of money preparing for the mediation, on conferences with solicitors and counsel and on preparation of position papers, and then commit to spend yet more money on a mediator whose stated aim was to dissipate the very advantages that had arisen from their careful preparation?

This practical problem is fatal to any theory of power-balancing because – no matter how compelling the theory in favour of power-balancing may be – a mediator who honestly discloses their intended role almost certainly will never have an opportunity to perform it.

The legal problem:

The legal problem is even worse.  Assume that the mediator did not disclose in the mediation agreement that they intended to take such steps as in their discretion seemed appropriate to increase the power of the less powerful party, at the expense of the more powerful party, and instead held herself out as neutral and impartial. Attempting power-balancing in this situation not only would breach the mediation agreement but would also render entry into it misleading and deceptive conduct in trade and commerce, in breach of s. 18 of the Australian Consumer Law, which applies to mediators. [note 1]

Even if the mediator said nothing on the issue in the mediation agreement, that silence itself probably would constitute misleading and deceptive conduct, for the reason that the role of mediator gives rise to an expectation in the parties and their lawyers that the mediator will be neutral and impartial, whereas the mediator always intended to act contrary to the expectation but failed to disclose their intention. [note 2]

Thus a mediator who discloses that they intend to engage in power-balancing is very unlikely to be hired as a mediator.  On the other hand, a mediator who intends to engage in power-balancing but does not disclose their intention to the parties will probably breach the mediation agreement and almost certainly will breach the Australian Consumer Law.  It follows that, unless mediators are prepared to engage in prohibited conduct that may render them liable in damages, they will not in practice have an opportunity to balance parties’ power.

note 1: The definition of “trade and commerce” in s. 2(1) of the Law states that it includes “any business or professional activity (whether or not carried on for profit”. The definition of “services” in s. 2 of the Law includes “benefits … under… a contract for or in relation to the performance of work (including work of a professional nature).” The confidential and “without prejudice” regime imposed by most mediation agreements cannot exclude the Lawbecause s. 96 provides that the Law “has effect despite any stipulation in any contract or agreement to the contrary.”

note 2: See, e.g., Demagogue Pty Ltd v Ramensky(1992) 39 FCR 31 at 32; Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd(2010) 241 CLR 357; [2010] HCA 31 at [16]-[33]; and Porges v Adcock Private Equity Pty Ltd[2019] NSWCA 79 at [109]-[110].

8. Does a mediator have any role with respect to power imbalances?

• For the reasons in section 7, the mediator probably has no realistic alternative to taking the parties as she or he finds them.
• That does not mean the mediator has to leave the parties in the position in which she or he finds them. Although mediators cannot engage in power-balancing, they nevertheless can play a very useful role with respect to parties’ powers.
• Reality testing by the mediator in private of the parties’ positions may significantly affect their approach. Likewise, reality testing about the durability or enforceability of proposed settlement agreements may affect their approach.
• Is there a contradiction between taking the parties as you find them and attempting to shift the parties’ positions towards each other so they can settle their dispute?
• There is no contradiction: It is a hallmark of legitimate reality testing that mediator does not upset existing power imbalances.
• It is the hallmark of illegitimate reality testing that it does upset existing power imbalances by (for example) providing a party with legal knowledge that it has not invested in unearthing (“There’s a recent High Court decision on limitations that is right on point and which means that the other party is out of time.”). This is illegitimate behaviour because it is not neutral or impartial. Acting other than in a neutral and impartial way creates a risk for the mediator of losing credibility/losing influence/being fired.
• Instead, the mediator should accept existing power imbalances and assist each party – given the imbalances – to analyse the strengths and weaknesses of its position and of the other side’s position. This analysis can also help a party determine whether offers received or contemplated are better or worse than the party’s BATNA.
• Women tend to value relationships more than men and thus, for fear of damaging a relationship, a woman may be inclined to ask the other party for less (or offer to pay them more) than a man who has the same BATNA (Babcock & Laschever, “Women Don’t Ask: Negotiation and the Gender Divide”, Princeton University Press 2003). Where appropriate, the mediator can help a party to understand that this is what she is doing. The mediator thereby helps her understand the nature and effect of gender power.  By doing this, the mediator enables the female party to decide consciously whether she values the relationship more than the best possible outcome of the dispute, rather than unconsciously making this decision.
• The mediator can assist a party to make realistic concessions or to capitalise on a strength itpossesses. This is not balancing power; it is recognising realities about power.
• Viewed this way, the mediator’s tasks with respect to party power can be seen as (i) helping each party to understand what power they have and how and when they should use that power and (ii) helping them understand what power the other party has and how and when it might use it.
• These tasks not only are consistent with being neutral and impartial but also they help the parties to participate effectively in the mediation and thus augment their self-determination.

9. A comforting conclusion

Reality testing is a core activity for a mediator. The mediator can employ it to help parties themselves to identify issues around power and to exercise their own decision-making about how they deal with it.  This enhances party self-determination.

Viewing the mediator’s role with respect to party power this way means that the patient, careful, earnest mediation of disputes remains a useful and important task. Practising mediators like me will be comforted by this recognition of the value of what they do for a living.

By Jill Howieson

As Martin Bartfeld said in his article earlier this month, “it is possible to attain a just outcome without doing things as they have been done before.” [1]

In arbitration, the way things have generally been done is by private judging rather than ‘arbitrating’.

As arbitration is making comeback; especially in Family Law, perhaps it is time to consider the question – what does it mean to be a family law arbitrator?

A brief history of arbitration

Arbitration is our earliest form of ADR.  According to Derek Roebuck, everywhere in the Ancient Greek world, arbitration was normal. [2]  In ancient arbitration, the arbitrator was more of a mediator than an arbitrator.  It was only if the parties couldn’t reach agreement themselves that the arbitrator would decide for the parties.

Judge Cryan outlines the role of the arbitrator in traditional family law arbitration as one of a sage.  Parties to a domestic conflict would agree to put their family disputes to the sage in the community and be bind by what he had to say (if they couldn’t agree between themselves first).[3]

Modern arbitration

Judge Cryan’s lecture on Family Law arbitration in the UK, delivered in June 2017, raises some salient points about modern family law arbitration.

• Family law arbitration is being considered around the world—Australia, England, Wales, Germany, Spain, Canada, and the US.
• All the models of arbitration under consideration seem to be the same—private judging.
• There has been no significant take-up of family law arbitration anywhere.
• In the UK, in 2017, there had only been 140 family law arbitrations conducted over past five years despite establishment of Institute of Family Law Arbitrators (IFLA) in 2012.
• Lawyers remain largely unaware or are wary of arbitration and as such parties remain unaware or wary of it as an option on the family law dispute resolution menu.
• Family Law Arbitration is not popular—yet!

As there is not much literature on the role of the arbitrator in modern family law arbitration, it is helpful to look at where arbitration has been more prevalent in the modern world – commercial and international arbitration.

International commercial arbitration

Crawford analyses the notion of the “ideal arbitrator” in investment and international arbitration.[4]  He

“…draws inspiration from Yves Dezalay and Bryant Garth’s historical conception of commercial arbitrators as a closed group of “Grand Old Men”– lawyers of distinction, trusted for their wisdom and judgment, although not arbitration specialists.  Dezalay and Garth pinpointed a second generation of arbitrators, who they rather unhappily labelled the “Technocrats.” These were expert arbitration practitioners who had spent their entire careers working in the field.  In 2012, Thomas Schultz and Robert Kovacs revisited Dezalay and Garth’s sociological study and added a third generation of arbitrators, whom they called the “Managers.” These were arbitrators highly skilled at managing proceedings, deliberations, and the organisation of tribunal work.”[5]

Crawford goes on to explore three potential dimensions of the ‘ideal arbitrator’—impartiality and independence; technical expertise; procedural and managerial expertise.  He ultimately decides that the quality of an ideal arbitrator lies in his or her ability to balance ‘unnecessary procedural diversions’ with ensuring fairness.

Commercial domestic arbitration

For domestic arbitration, type into a search engine ‘the role of an arbitrator’ and the engine changes the search to ‘the role of arbitration.’  Thus, we can ascertain that to understand the role of the arbitrator in domestic arbitration, we look to the role of arbitration.

In 2012, the Australian Commercial Arbitration Act 2012 (the CAA), updated the uniform Commercial Arbitration Acts (1985) to give parties an increased ability to shape the procedure themselves.

The Paramount object of the CAA is to facilitate the fair and final resolution of commercial disputes ‘… without unnecessary delay or expense’.  The CAA aims to achieve this by ‘enabling parties to agree about how their commercial disputes are to be resolved…and to provide arbitration procedures that enable commercial disputes to be resolved in a cost-effective manner, informally and quickly’.

Thus, the role of the arbitrator in commercial disputes is to hold in mind that it is for the parties to agree the arbitration process— and that it is to be less formal, quicker, and less expensive than judging.

Let us know turn to domestic family law arbitration.

History of family law arbitration in Australia

1991 amendments

In 1991, the Australian government amended the Family Law Act 1975 (Cth) (FLA) to permit arbitration in property, maintenance, and financial matters.  Despite the legislation, there was no significant uptake of family law arbitration. (In contrast, mediation initiatives, albeit Government funded, enjoyed an immediate uptake such that now mediation is an accepted part of family law dispute resolution culture.)

2008 revisiting arbitration

In 2008, upon request from the Attorney-General, the Family Law Council re-considered the arbitration of family law property and financial matters.  In accordance with its terms of reference, the Council focused on the desirability of compulsory arbitration and how the FLA could incorporate a compulsory model.   In the Council’s discussion paper, The Answer from an Oracle, the Council noted that there was a clear indication that some key stakeholders did not support the introduction of discretionary court-ordered arbitration.  Again, there was no significant uptake of family law arbitration.

2015 arbitration amendments

In 2015, the government again revisited the use of family law arbitration for property matters and made amendments to the rules to facilitate greater use of arbitration.  The amendments included:

• amendments to disclosure and subpoenas,
• the procedure for an arbitrator to refer a question of law to the court for determination,
• the procedure for notifying the court that the arbitration has ended and the arbitrator has delivered an award, and
• the requirements for registering an award.

All in all, there hasn’t been a great deal of discussion on the role of the family law arbitrator.

The Role of AIFLAM

When the Commonwealth Government amended the Family Law Act in 1991 to provide for arbitration, it legislated qualifications for arbitrators of family law disputes and nominated that AIFLAM (the Australian Institute of Family Law Arbitrators and Mediators) keep a list of qualified family law arbitrators (those who had completed the requisite training).

In the 1990s, AIFLAM in conjunction with Bond University Law School developed their arbitration course and taught it to family law practitioners.  AIFLAM continued to offer the arbitration course intermittently from the 1990s but all the while there was a limited uptake of family law arbitration.

In 2017, following the 2015 amendments, AIFLAM recognised the need to update its existing arbitration course and to increase arbitration training for family lawyers. It also recognised the imperative to design an accepted model of arbitration and a system of standards and accreditation.

In 2018, AIFLAM conducted consultative workshops to understand the culture of family law arbitration; to develop an arbitration practice model; to explore the utility of family law arbitration standards, and to understand the role of the family law arbitrator at a deeper level.

In 2019, AIFLAM completed the AIFLAM Arbitration Practice and Approval Standards (the Standards) as part of the AIFLAM ADR Accreditation Scheme.

Theoretically grounded Standards

The Standards were drafted with the theory of Procedural Justice firmly in mind.  The practice model was designed according to the research evidence-base that shows that procedural justice is the most important factor in shaping our overall judgments of justice and satisfaction in dispute resolution decision-making contexts.  Essentially the research shows that if the parties perceive that a decision-making process is procedurally just then they are more likely to:

• view the enacted process as legitimate
• accept the decision whether it is in their favour or not
• retain their sense of autonomy and self-worth
• co-operate and accept the decision-maker’s advice/award, and
• have a sense of fairness and satisfaction with the overall process.[6]

The first major study in procedural justice was of people involved in an arbitrated civil lawsuit in the federal court in the US.  The study found that judgments of procedural fairness were strongly related to the parties’ decisions to accept the arbitration award.  Subsequent studies have replicated the finding and now it is clear that parties to a civil dispute are more likely to accept an arbitration award if they perceive that the procedures used to arrive at the award were fair.  Further, the research shows that perceptions of procedural justice influence one’s perceptions of the legitimacy of the decision-making process—a major consideration in the emerging ‘profession’ of family law arbitration. [7]

So, what is the role of the arbitrator that these Standards contemplate?

In terms of what makes a process seem fair, the research shows clearly that the quality of the treatment of the parties is the most important consideration for the parties.  The quality of treatment involves the parties perceiving the decision maker as:

• treating them with respect, politeness, and dignity
• being trustworthy
• communicating his or her ideas honestly in a straightforward way and providing honest explanations for his or her decisions
• being impartial and independent
• giving them an opportunity to say everything they want to say
• taking their needs into account and considering their views, and
• giving them enough information about arbitration so that they can make informed decisions about it.

The rules of being a Family Law Arbitrator

Most writers in most arbitration fields bemoan the fact that arbitration has become increasingly adjudicative in nature and is not very popular.  For family law arbitration to reach its potential as a fair, feasible, desirable and thriving family law dispute resolution process, below are some rules for the Family Law Arbitrator.

Be an arbitrator, not a judge

1. The first rule for the family law arbitrator is be an arbitrator—not a judge. The history of arbitration suggests that a family law arbitrator is someone who balances being a sage, a mediator and an arbitrator all at once.  Someone who the parties trust to make a wise decision about their future, and whose decision they will obey and respect, if they aren’t able to reach the decision by themselves..[8]

Process choices

2. The second rule for the family law arbitrator is that it is the parties’ process, not yours (btw – this is a prominent mediation rule too). In arbitration, the parties agree to arbitrate and they agree the arbitration process—the arbitrator does not determine how s/he will conduct the arbitration, s/he manages it.  The parties have process choices and process control.

Procedural justice

3. The third rule for the family law arbitrator is be procedurally just. A procedurally just family law arbitrator will:

• treat the parties with respect, politeness, and dignity
• develop trust by understanding the parties narrative and needs
• be honest and transparent
• ensure the parties’ process control (as above) and,
• ensure informational justice and informed consent

Be romantic!

4. Paulsson laments that arbitrators “labour, ..not for love” but for an added string to their business bow.[9]  Therefore, a final rule for family law arbitrators is to be romantic.  Labour for love—for the love of justice; for the love of the community and for the families who put their trust in you; and for the love of a profession, which assists people to navigate one of the most vulnerable times of their lives, and resolve their disputes in fair, polite, respectful, dignified, and constructive ways.

What type of arbitrator will you be?

References

[1] https://adrresearch.net/2019/06/16/arbitration-of-family-law-property-and-maintenance-disputes/

[2] Derek Roebuck, Ancient Greek Arbitration (Oxford, Holo Books: The Arbitration P, 2001) at pp. 319–331; Derek Roebuck, ‘“Best to Reconcile”: Arbitration and Mediation in the Ancient Greek World’ (2000) 66 Arbitration 275–278

[3]  Judge Crynan (2017)  https://www.youtube.com/watch?v=1jTIGFcrT18

[4] James Crawford (2018) The Ideal Arbitrator: Does One Size Fit All? 32 American University International Law Review 1003

[5] Ibid, 1005

[6] Howieson, J. (2011) ‘The Professional Culture of Australian Family Lawyers: Pathways to Constructive Change’ 25 (1) International Journal of Law, Policy & the Family 71-99

[7] Lind and Tyler (1988) The Social Psychology of Justice (Plenum Press, New York)

[8] Cryan (2017) above n 2.

[9] Jan Paulsson, Introduction, 1 Arbitration International 1, 2 (1985) cited above ibid, 1012

The National Mediation Conference 2019 Canberra partnered with four academic journals to provide opportunities for those who attended to publish from their conference papers. This is a reminder to participants and others in the ADR field to submit to the following journals:

The Australasian Dispute Resolution Journal (ADRJ)

The Australasian Dispute Resolution Journal (ISSN: 1441-7847) is a key resource for staying up to date in the area of Alternative Dispute Resolution (ADR). The journal features articles covering the broad spectrum of ADR methods, including mediation, arbitration, independent expert appraisal, negotiation and early neutral evaluation.

Covering a diversity of topical matters relating to ADR within and outside the court system, the Australasian Dispute Resolution Journal includes articles from a broad range of ADR practitioners, teachers and academics.

Call for Submissions (Special Issue: NMC 2019)

Innovation and research continues to expand our knowledge in the broad field of dispute resolution. The next Part of the Australasian Dispute Resolution Journal is a special issue focusing on the National Media Conference held last April in 2019 in Canberra, and submissions for unpublished articles on the topic (up to 5,000 words) and book reviews (up to 1,000 words) are welcome. All articles are peer reviewed.

Contributions should be emailed to the Thomson Reuters Editor at lta.adrj@thomsonreuters.com. by 18 July 2019.

Ruth Charlton

General Editor, Australasian Dispute Resolution Journal (ADRJ)

The Newcastle Law Journal

The Newcastle Law Review (the NLR), the journal of Newcastle Law School, was first launched in 1995. Since that time an impressive array of articles and notes has been published, representing traditional categories of legal scholarship as well as interdisciplinary contributions. Newcastle Law School has reinvigorated the journal and it is now published electronically and an open-access resource to the public.

Newcastle Law School, in collaboration with the Design Committee of the National Mediation Conference 2019, is organising a special edition of the NLR based on the mediation theory and practice. This special issue (National Mediation Conference – Special Mediation Issue) will be published in 2019. We welcome the submission of original and high quality research work on mediation for consideration as to publication in this special issue. Please note that the NLR is a refereed journal. The acceptance of a submission for publication is subject to the outcome of a double blind peer-review process with a final publication determination made by the editors after full consideration of the peer reviews.

In making a submission, the authors’ compliance with the following submission guidelines would be much appreciated:

1) Word limit: 6,000 – 9,000 words

2) Referencing style: Australian Guide to Legal Citation (Fourth Edition, 2018)

3) The deadline for submission is Friday 19 July at 5.00pm. Late submissions will not be considered.

If you have any questions or enquiries in relation to this special edition, please contact: Dr. Bin Li, bin.li@newcastle.edu.au (Editor, The Newcastle Law Review)

Dispute Resolution Review

The Dispute Resolution Review (DRR) is an open access double blind peer reviewed journal.

Special Issue: National Mediation Conference 2019

Background information

The National Mediation Conference (NMC) is held every 2 years and in 2019 celebrated its overdue 25th anniversary. The NMC brings together Australia’s most respected and experienced mediators and dispute resolution practitioners to develop and enhance mediation practice, research, and education, as well as to gain deeper insights into predicted future developments. In 2019, the focus of the conference was on the rigour of research and the importance of a credible evidence base to inform the future of mediation and other forms or types of dispute resolution.

Call for papers

This double-blind peer-reviewed special issue of the DRR will showcase papers presented at the NMC in 2019. We invite submissions from all presenters at the conference in the following paper categories:

1. Full-length articles describing applications of dispute resolution, dispute resolution theory, research analysis, and future developments (5000-10000 words)

2. Practice notes describing practical innovations or initiatives, case studies or work in progress (approximately 2000 words)

3. Professional reflections on contentious and topical issues (approximately 1000 words)

4. Book reviews (500-1000 words)

Please submit your paper via the online Scholastica submission process: https://blr.scholasticahq.com/for-authors.

The deadline for full-text submissions is Friday June 28th, 2019.

Stylesheet and further information

Author information including a style sheet, referencing guide, and background information for the journal is available at: https://drr.scholasticahq.com/for-authors

Conflict Resolution Quarterly

Research and Practice Trends and Innovations

Call for Papers on Mediation

Conflict Resolution Quarterly publishes scholarship on relationships between theory, research, and practice in the conflict resolution and ADR fields. Conflict Resolution Quarterly is sponsored by the Association for Conflict Resolution.

This call for papers is designed to elicit the latest research, evaluations, and practice notes in the field of Mediation.

Each article should include a review of the applicable literature and support all claims with research and references.
Suggested topics might include but are not limited to:
 New knowledge, cutting-edge approaches, and changes to mediation practice
 Research detailing best practices for mediators or others involved in ADR and conflict resolution work
 Innovative mediation case studies with lessons learned for others to consider
 Discussion of other third-party conflict resolution practices including dialogue, facilitation, facilitated
negotiation, regulatory negotiations, fact-finding, conflict coaching, diplomacy, and arbitration at the local,
national or international levels
 Examinations of the fields and subfields of alternative dispute resolution (ADR) and conflict resolution,
including the current state of knowledge and current or future trends
 Analyses of disputant and third-party behavior, preference, and reaction to mediation situations, processes, and
outcomes
 Consideration of mediation in a variety of contexts including family, organizational, community, healthcare,
educational, commercial, and international contexts
 Sensitivity to relational, social, and cultural contexts that define and impact conflict and its management
 Discussion of mediation training and its changing demands, both for practitioners and educators concerned
with program development and program evaluation
 Needs assessments examining underdeveloped areas of mediation research or a forecast of future directions

Please include a 100-word abstract and adhere to CRQ formatting guidelines. CRQ uses a double-blind peer review process to assure fair and equal access to all authors.

The deadline for this Call for Papers is July 15, 2019, but submissions received after this date may be considered for inclusion in a later edition of CRQ.

All submissions are to be made electronically via this website: http://mc.manuscriptcentral.com/crq

For information on manuscript preparation, visit:
https://onlinelibrary.wiley.com/page/journal/15411508/homepage/forauthors.html

Susan S. Raines, Ph.D., Editor-in-Chief, CRQ
Professor of Conflict Management, Kennesaw State University,
sraines@kennesaw.edu

Hello Australasian Dispute Resolution Research Network (ADRRN) followers, I thought it might be time to inform/remind you about our approach to membership. Basically, this network is entirely voluntary and members (you) bear the responsibility to keep in touch with us, because we don’t keep a membership list. I’m sure you understand why – we all have quite enough administrivia in our lives already, and the ADRRN couldn’t possibly keep track of where people move to as they follow their exciting ADR related careers. We like to see it as an innovative and inclusive way to run an organisation. There are no membership fees, no backroom membership deals, no paperwork, and no hierarchy. We use technological platforms and each individual can decide how it suits them to participate. Everyone’s a grown up who keeps themselves informed about the aspects of the network that they are interested in.

Keeping connected

To join the ADRRN, follow us here (at http://adrresearch.net). Our blog is our public face and the way we communicate our work to the world.

That’s it! Done.

Now, to make sure you don’t miss out, think about how it suits you to follow us. Options include:

1. set up an email alert about each of our posts to your email account, you can control how frequently and when the email is sent;
2. follow us on Twitter @ADRResearch, every article on the WordPress site is automatically posted to Twitter;
3. follow us on Facebook.

You, our members, are important to us. We want you to follow our blog, our twitter account, to consider joining our annual Roundtables, to contribute content by commenting or posting, and to otherwise be part of this community.

Roundtables

Our 2019 Roundtable will be held at Latrobe University in Melbourne, hosted by Lola Akin Ojelabi and Jackie Weinberg. You can see the Call for Papers for more information. Our Roundtables are not like other conferences – we insist that the work be in progress and the papers are discussed rigorously with a view to helping the author improve their work before it is finalised. It’s amazing what can be achieved when everyone is brave enough to participate in this mutually supportive process. See reflections on our last Roundtable at Open letter of thanks and appreciation #ADRRN18.

When you have submitted your abstract, you will be contacted by email from adrresearch@gmail.com. Communication by email will happen before and immediately after the Roundtable for participants only. Please note, that email list is not an ADRRN membership list! A new email list is created each year and the gmail account lies dormant except in relation to Roundtables.

Contributing to our online content

Please think about how you might like to contribute your ideas to the network.

The easiest way is to re-post and/or comment on Twitter, WordPress or Facebook.

You might like to create a post (see suggestions and guidelines below). You can email me Olivia.Rundle@utas.edu.au. I am overall editor in charge of the blog, and I coordinate the many people who also volunteer their time to keep our network active. Each month one or two members ensure that regular posts are made. As a courtesy, we coordinate timing of posts with the monthly editors. We can discuss joining you as a regular author or you might like to volunteer to take on editing for one month.

Suggested content

See Becky’s very helpful piece about academic blog posts. We prioritise posts that share scholarly ideas and talk about research in the DR field. Some approaches to content that have worked for our blog in the past include:

• Summarising a more substantial academic piece of writing (either by the original author or someone else);
• Introducing a new idea that you intend to pursue in your research, perhaps by responding to a current issue or event;
• Introducing a Dispute Resolution researcher by profiling them and their work
• Sharing a call for papers for a research conference
• A series of posts over a month that draw from a new publication
• Guest posts by students, drawing from quality work they have submitted for assessment
• Reports about conferences or research meetings
• Stories about the process of research.

Guidelines for content

1. The ADRRN blog can only be used to share our own or others’ academic work. The blog should not be used to promote our commercial practices in law or dispute resolution.
2. Blog posts work well as half way points between conference papers and academic articles. They can be used to spark ideas for conference papers or articles or to summarise published work. For PhD students, a blog post summarising a chapter of your thesis could work also. You could set blogging as an assessment task for your students and then publish the best ones.
3. Ideally a blog post is between 500-2,000 words.
4. Try to use hyperlinks rather than endnotes wherever possible. Reference open access materials wherever you are able, or at least link to the place where a publication can be purchased. Many of our readers do not have access to university library subscription databases.
5. Try to include photos/images in your post. It is important not to breach copyright restrictions. You could use a photo that you have taken yourself or you could use photos that are open access/licensed under Creative Commons or which are out of copyright. All of the State Libraries in Australia have picture libraries that are searchable and which have photos with minimal copyright restrictions. (Always check the terms of use of the photo in the library record when you search and attribute as required). We love using old photos with some kind of tangential relevance only to the post. Or you can check out compfight.
6. Post during Australian business hours, ideally between 8-10am AEST. Use the scheduling feature to optimise posting time.

I hope this is helpful and I look forward to your continuing involvement with the ADRRN, in your own preferred way.

Written by Martin Bartfeld QC- Family Law Arbitrator

Family law arbitration is, like all other forms of arbitration, sources its jurisdiction from the Family Law Act, the Family Law Regulations and the Family Law Rules. The jurisdiction can be exercised by an arbitrator appointed by agreement of the parties. Because the Australian Constitution requires that the judicial power of the Commonwealth to be exercised by Judges appointed under Chapter III, a court cannot order the parties to commit to an arbitration unless they agree.

For an exposition of the difference between the exercise of judicial power and arbitration read this High Court case

A family law arbitration may either be court ordered or privately agreed. In either case, the parties must agree to arbitrate. A court ordered arbitration limits the matters to be arbitrated to Part VIII (property and spousal maintenance) proceedings, or Part VIIIAB (de facto property or spousal maintenance) proceedings (other than proceedings relating to a Part VIIIAB de facto financial agreement).

Private arbitration extends matters to include Part VIII proceedings, Part VIIIA proceedings, Part VIIIAB proceedings, Part VIIIB proceedings or section 106A proceedings; or

(ii) any part of such proceedings; or

(iii) any matter arising in such proceedings; or

(iv) a dispute about a matter with respect to which such proceedings could be        instituted.

In effect, a private arbitration extends to superannuation splitting, setting aside Financial Agreements which are (or are alleged) to be binding on the parties and making an order for the execution of documents by a Registrar or other officer of the Court to give effect to an order.

Who Can be an Arbitrator

Unlike the Commercial Arbitration regime established by State and Federal legislation, to be an arbitrator for family law purposes, a person has to be qualified. The qualification requirements are specified in the regulations and they require specialised practical experience in family law and the completion of a prescriber course.

Upon qualification, a person’s name is entered on a list maintained by AIFLAM (Australian Institute of Family Law Mediators and Arbitrators) and only persons whose name appears on that list can accept appointment as an arbitrator under the Family Law Act.

Conduct of an Arbitration

Parties who have agreed to arbitrate usually enter into an arbitration agreement with each other and the arbitrator. The agreement is formulated at a preliminary meeting between the parties and the arbitrator and it must contain all of the details specified here.

In addition the parties and the arbitrator design the arbitration and that design is also incorporated in the arbitration agreement. Matters which need to be agreed are;

• Whether the arbitration will be on the papers, partly on the papers and partly on oral cross examination or a full hearing as if in court or any combination thereof;
• Whether the rules of evidence are to apply. The parties can agree to exclude the operation of the rules of evidence and permit the arbitrator to inform himself or herself of any matter in any way he/she sees fit;
• How the evidence is to be presented;
• What if any technology is to be used in the course of the arbitration;
• Where, when and if a hearing is to take place;
• Matters of discovery and disclosure of information;
• Whether a preliminary issue (e.g. valuation) should be heard and determined first with a view to eliminating a full hearing and facilitating settlement;
• Lay out a timetable for completion of preparation;
• Make directions to prepare for a hearing.
• Lay out a timetable for delivery of an award;

The arbitration then proceeds. At the conclusion, unless the matter resolves, the arbitrator must deliver an award, the contents of which are prescribed by the regulations.

An award can be registered by either party. Registration is subject to a right of objection. Once registered, an award can be enforced as if it were an order of the court.

Registered awards can be reviewed by a single judge of the Family Court or the Federal Circuit Court on a question of law. In effect this is similar to an appeal from a decision of a single judge hearing the same type of matter. Awards can also be set aside on by a court on grounds similar to those contained in s. 79A (which applies to property orders made by a court).

Designing a Fair Arbitration Procedure

Unlike commercial litigants who resolve their disputes in courts or arbitrations, for family law litigants legal fees and disbursements are not usually tax deductible. Nor do family law litigants have legal budgets and the commercial infrastructure to conduct litigation.

In family law financial disputes, property is not created, it is only divided. While a successful commercial litigation can result in damages or other compensation which may increase the company’s wealth, in a family situation a limited pool of assets (irrespective of how wealthy the family may be) is going to be divided. Nobody’s wealth actually increases as a by-product of the litigation process.

If family law arbitration is to find acceptance in the community, the additional cost of meeting the arbitrator’s fee has to be economically justifiable.

Matters of speedy decision making, choice of arbitrator and bypassing the public nature of court hearings are all important. However, the most significant advantage, in my opinion, is the ability to design a process which is more efficient and deals with matters in a more sympathetic, albeit conclusive way.

Fundamental to the process is the need for fairness. In litigation terms, procedural fairness or natural justice was described in the context of court hearings in the following way;

33. As the authorities show, it is a fundamental general principle of natural justice that a party to litigation has a prima facie entitlement to have the proceedings heard in the party’s presence and to be given an opportunity to be heard before an order affecting some right, interest, entitlement or privilege of the party is made. The opportunity to be heard usually includes the right to know the case advanced against the party; the opportunity to answer that case; the opportunity to dispute an opponent’s case by cross-examination of the opponent’s witnesses; and the right to adduce evidence in support of the party’s own case and to make submissions, before an order is made. 

34. However, those same authorities show that both the content, and application of, the rules of natural justice are flexible requiring fairness to all parties in the circumstances of the particular case. Those circumstances include, without being exhaustive: 

1. a) The nature of the proceedings;
2. b) The nature or content of the right, interest, entitlement or privilege of the aggrieved party;
3. c) The nature of the power exercised and the statutory provisions governing its exercise;
4. d) The facts of the particular case relevant to any of the above and relevant to the requirement of fairness to all parties in all of the circumstances of the case. (emphasis added)

An award can only be reversed for bias or lack of procedural fairness if the court finds that;

“..the arbitration was affected by bias, or there was a lack of procedural fairness in the way in which the arbitration process, as agreed between the parties and the arbitrator, was conducted”. (emphasis added).

What is clear from that section and from Rules which permit agreement about the conduct of the arbitration and for the rules of evidence not to apply is that a family law arbitration need not be conducted as a private court hearing with all of the processes and procedures which apply to court hearing (and which are both necessary and appropriate for that purpose).

A well designed arbitration process will accommodate the special needs of family law clients. Some of the matters to be considered are;

1. Not all parties can afford the long and drawn out processes of a traditional trial. It is time consuming and engages a number of expensive professionals for lengthy periods.
2. Arbitration can be a useful adjunct to mediation. Not all issues are contested and need to be litigated. If there is an impediment to settlement, the disagreement can be quickly and cheaply resolved.
3. The resources of courts are strained with the consequent waiting times for hearing and judgment. A simpler process produces quicker results.
4. Interim or discrete questions can easily be determined at a preliminary stage. This may help resolve the dispute overall.
5. Not all parties do well in cross examination. Why should the more confident and articulate party succeed because their former partner does not match their wit and skills?
6. Not all lawyers cover everything they need to cover in cross examination. It may be good forensic fun to point out that there was no cross examination on a point, does it really provide the decision maker with the information needed to make a just decision?
7. The confrontational approach with its warfare terminology is not conducive to building a post litigation relationship for parties who will need to raise children with some semblance of co-operation.
8. An arbitrator does not have the coercive power of a judge. The arbitrator cannot charge anyone with contempt, and the most he or she can do is terminate the arbitration. Therefore, a process must be devised to minimise confrontation and the “fight” “win” “lose” mentality of litigation.
9. The absence of a public element in an arbitration, in the sense that courts are open to the scrutiny of the public, means a less formal approach can and should be adopted.

It is possible to attain a just outcome without doing things as they have been done before. It requires practitioners to think outside the square and to bring their clients along with them.

Conclusion

Forty years ago mediation was thought of as a waste of time by a majority of the legal profession. Today, it is hard to imagine any case in any court (except the most urgent) being afforded any court time before a mediation takes place.

There is no reason why the lessons learned in the implementation of mediation in family law (where the Family Court of Australia led the way) should not have equal application to financial arbitration.

The Australian Law Reform Commission in its Report “Family Law for the Future — An Inquiry into the Family Law System”  saw sufficient advantage in the continuation of a private arbitration system in family law to recommend expanding the jurisdiction to some parenting disputes. Recommendations were also made to clarify the process of family law arbitration.

Chief Justice Alstergren is an enthusiastic supporter of family law arbitration. His Honour is used to conducting commercial arbitrations and he recognises that parties are advantaged by this type of dispute resolution. As Chief Justice of the Family Court and Chief Judge of the Federal Circuit Court, his Honour also appreciates that moving cases out of the overcrowded lists will free up the resources of the courts and enable them to manage their lists more effectively. His Honour has, on many public occasions, promised support from the Courts for private arbitrations.

This support is welcome and should be embraced by all who practice in the jurisdiction. It means that any issues which need to be resolved by a court in arbitrations (such as the issue of subpoenae or the facilitation of discovery) will be dealt with expeditiously.

Martin Bartfeld QC

Owen Dixon Chambers East

15 June 2019

Written by Laurence Boulle

[Free Image from Creative Commons]

The lengthy vote-counting procedures for the recent Australian federal election is about to conclude, creating opportunities for reflection and analysis.

There are manifest differences between political elections and the familiar forms of dispute resolution: this is noted but not developed here, other than citing the truism that there are many moving parts in mediations, litigation or arbitrations, on one hand, and electoral systems on the other, such that much depends on a viewer’s subjective perspectives on the two.

Similarities between the two systems might at first appear less prominent than the differences yet  are arguably of interest to those undertaking  daily dispute resolution duties. Followers of the ADR Network have previously read (in prose) about the associations between Poetry and Mediation and the question arises as to whether there are connections between Elections and well-known DR systems. This contribution is a DR perspective on some of the moving parts in the federal elections, with potential lessons for both systems.

The core approach taken here is the systems both involve choices for participants, in one case ostensibly based on contrasting political policies and promises and in the other ostensibly based on parties’ rights, needs and priorities and their options outside dispute resolution forums. This is where the connections can be drawn – human choices are ubiquitous in social systems and despite the varying and inconsistent circumstances in which they are made they have common impulses and dynamics.  In brief, the similarities between the two systems are based on human irrationality and its exploitation.

Here I look at the elections through the eye of a dispute resolver, and then turn the gaze back on dispute resolution itself.

Idiosyncratic reflections on political matters are inevitably informed by an author’s confirmation biases and availability heuristics. As Forum devotees well know, neutrality is no longer a defining feature of DR processes, and colleagues such as Field and Crowe are about to demolish my own preferred concept of impartiality. As it is arguably better to be overt about one’s lack of neutrality, (and now impartiality!) I declare my interests at the end of the article.  (Perhaps academic authors should be more ready to declare their convictions, but that is a subject for other non-impartial contributions.)

Meta Matters

As noted above, at the meta-level elections and dispute resolution systems have at their core human decision-making, regardless of the medium, structures and procedures at hand. In both contexts there is an assumption of self-determination – that is discrete decisions are based, by respective voters and disputants, in terms of exercises in linear logic according to which they make objective assessments of costs and benefits, followed by utilitarian choices in voting, negotiating and the like. These Enlightenment notions undermine much teaching and learning in law, politics and dispute resolution.

The same notions have, however, been long abandoned in many academic and professional disciplines. Their tenure was made tenuous 400 years ago when David Hume, a product of the Enlightenment, informed us that, ‘Reason is the slave to our passions’. While Hume’s research impact assessment is not conspicuous in contemporary scholarly literature, whether political or dispute resolution, his views have been refined in contemporary thinking in many disciplines – cognitive psychology, behavioural economics and neurobiology to name a few. As observed throughout this piece, rationality in both politics and dispute resolution is jeopardised by the predictable irrationality, emotions and biases of the human mind.

At an impressionistic level, and in apparent obliviousness of A* imperatives in research networks I would contend that the recent federal election in Australia reflects, reinforces or reifies principles which have analogues in dispute resolution – and which DR practitioners require in their take-on luggage. Conversely DR practitioners might have contributions to make in political discourse when it loses its way.

Assessing Outcomes

The election outcomes were interpreted widely by winners and commentators as a ‘miracle’ and a ‘landslide’. In reality the election was decided on a relatively narrow basis. In terms of first preferences the government achieved 41.5% of the primary vote, a negative swing of 0.5%, against the opposition’s 33.3%, a swing of -1.4%. In terms of two-party preferred results the government attained 51.5%, an increase of 1.9% over the previous election. In terms of seats won and lost the government achieved a net gain of four seats over its previous tally and the opposition a net loss of four. As regards the Senate the results were also not as dramatic as portrayed in the media –  with 38.3% of the Senate vote the government increased its seats by four, but did not attain a majority, with no net change in the opposition’s Senate numbers. The outcome did, significantly, elevate the government from minority to three-seat majority status in the lower house, but did not constitute a landslide, avalanche or other earthly movement as claimed in many quarters.

Dispute resolvers are familiar with what is at play here – assessments and perceptions, whether positive or negative, of DR settlements are a function more of expectations than of outcomes. Managing expectations is a prime responsibility for dispute resolvers and their representatives, designed to counter the optimistic over-confidence and confirmation bias commonly agitating their clients. The election evidenced the same disjunction between expectations and outcomes: a series of consecutive opinion polls over several years created solid expectations of an opposition win, which was confounded in reality by a combination of voter choices and vagaries of the preferential electoral system. For mediators and other dispute resolvers it confirms the importance of expectation management in the face of optimistic over-confidence and confirmation bias among clients and their advisers.

Framing Options for Choices

Expectations are created or managed, in part, by how options are framed and choices are presented to voters in electoral contexts. This is particularly significant in the contemporary ‘attention economy’ where there are infinite simultaneous and sequential demands being made on the consciousness of our finite brains. In this context the human brain can be overwhelmed by the demands of navigating uncertainty, and simple, and simplistic, frames of reference and slogans are more conducive to engineering intended outcomes than complex frames and complicated analyses, however profound. Despite their extraordinary potential powers human brains like ‘neat and orderly’ and can have difficulties coping with uncertainty.

In the federal election campaign the government used the slogan ‘Building our economy, securing our future’. The terms, however imprecise, have concrete associations and a wholesome tactile affect (and are linked to loss aversion referred to next). The opposition’s mantra was ‘A fair go for Australia’, a slogan more abstract and intellectual in content and tone. Needless to say there were many other ‘frames’ from both mainstream and minor parties during the campaign, relating to taxes, economic management, budget fairness, migrants and generational equity – sub-slogans beneath the shadow of the others. All parties framed their policies with different degrees of spin, transparency or concealment. Politicians and their minders are inveterate framers and reframers and remind us again of the power of words and language in decision-making contexts – people act in terms of their perceptions and perceptions are in part a function of language.

Dispute resolvers are, or consider themselves to be, the gold medallists in reframing: from positions to interests, from the past to the future and from one side’s toxic terminology to neutral language more palatable to the other. Framing and reframing are sometimes regarded as the quintessential skills of mediators and conciliators, designed to shift cognition in order to change behaviour. However even for veteran dispute resolvers there are salutary lessons from the election – how people perceive the world determines how they operate within it. Framing and reframing in both electoral and dispute resolution contexts challenges the assumed rationality of human decision-making.

Rationality and Affect

The rationality of the cognitive brain does not, in politics, disputes or life, inevitably prevail over emotions, whether instinctual or induced by rhetoric. We live in an age in which emotion often trumps rationality and feelings trump facts. Fear is the predominant feeling in both human and non-human animals and perceived relief from fear is a major motivator of choices and behaviours. The government made extensive use of terms such as ‘security’, ‘building’, ‘growth’ and ‘economic management’, terms likely to promote reward rather than retreat responses. Slogans relating to ‘taxes’, ‘pensioners’, ‘refugees’ and ‘shiftiness’, also heard during the campaign, had their own negative connotations, likely to invoke in some voters powerful, albeit unconscious, fear and retreat responses. Rational reasoning and argumentation are frequent casualties of the biases and heuristics referred to in this note. Indeed, political argument feels sometimes more like conflict – the proper domain of dispute resolvers.

Dispute resolvers have long operated with the understanding that all decisions have an emotional base, despite the apparently rational logic of the ‘law, facts and evidence’. When the cognitive brain does come into the equation it is not reason which overrides existing feelings but the reason-induced countervailing emotions which cause disputants to change their minds.  The rational mind is, however, important in providing justifications for decisions reached on an emotional basis – it allows us to validate and defend decisions, such as settling for less than our legal ‘entitlement’, in order to diminish our cognitive dissonance – to have factors with which to convince friends, loved ones and workmates, about the probity of our decisions. Despite the differences in electoral politics dispute resolvers can reinforce understandings of human behaviour in their domains from observing voting behaviours in the campaign.

Averting Loss and Seeking Gain

Linked to the framing and predictable irrationality factors is the reality that people are motivated more by fear of loss than they are by the hope of gain – part of the primitive survival instinct still prevalent in current times. We are loss averse beings, which got homo sapiens through difficult physical circumstances in history to where we are today. The loss/gain balance in the federal election was not one-sided, both sides appealing to both elements of the equation. However the meta-context in today’s state of the nation is a prevailing sense of loss perceived by many people – as a consequence of competition policies, employment insecurity, stereotypes of migrants, wage stagnation and uncertain futures, inducing a paradoxical scarcity syndrome in one of the most affluent countries in the world. However real or not these factors might be perceptions are more important than facts, and facts on matters such as environmental realities and inter-generational equity don’t speak for themselves. Where there is already a wide-spread social perception of loss and fear in groups wanting to feel secure it is easy to exploit this in election situations.

Dispute resolvers are again well-versed in the art of addressing the factors of risk aversion and risk-seeking behaviour. They know that disputants see the world not how it is but how they are. They are, or should be, experts in mitigating perceptions of loss by reframing to gain such that parties will accept settlements to avoid unknown risks. They know that judgments about risk are, unobligingly, often based on identities and beliefs, not on careful evaluation of available evidence. Belief perseverance can prevail even where facts change (‘I expected X to happen but it didn’t which goes to show that it will’) and public commitments to beliefs tend to lock them in. This is an area where dispute resolvers still have much to learn.

Experts and Expertise

Today science and expertise have lost much of their acceptance and legitimacy.  This is a complex phenomenon with many contributing causes but it is apparent in political elections and to a lesser extent in dispute resolution – referred to as expertise deficiency.  Expertise is a product of slow analytical methodologies and can provide complex outcomes, whereas politicians can be quick and simple – if not simplistic. The views of scientists, by their nature, tend to be general in form and do not always take good account of the feelings and circumstances of particular individuals. Moreover statistics from scientists, economists and lawyers, don’t resolve disputes in themselves –  they provide a basis for managing different conflict circumstances. In combination these factors have caused experts, particularly academics and increasingly scientists, to be regarded and described as privileged elites – even by the true elites. Increasingly scientists are seen as having and promoting their own agendas which do not accord with those of the ‘non-elites’. This is an ironic situation for science since experts and expertise cannot resolve democratic questions but their contributions should be able to narrow and define conflicts. The reaction against and disbelief in science and experts is a trend in many political and religious contexts, here and abroad.

This phenomenon has some resonance in dispute resolution situations. Legal representatives can be tempted to take the ‘inside view’ in relation to the probabilities of a client’s success at a future hearing – as opposed to starting their assessment with the ‘external’ base rate for the that kind of case, before taking account of the its peculiar features. While lawyers are themselves experts theirs is not an expert-based methodology. Courts have come some way in mitigating the ‘duelling experts’ phenomenon by creating systems for conjoint evidence and other dispute resolution systems have creatively managed their use of experts. In short, the displaced reliance on expertise found socially and politically is not as prevalent in dispute resolution systems, but the appearance of expertise deficiency elsewhere is a cautionary note for dispute resolvers.

The Time Factor

In terms of decisions with consequences in the intermediate- or long-term future there is a latent bias in human decision-making. It involves the propensity of most people to over-value current economic or other factors of value even when there is promise of greater value in the future – the intertemporal utility function. In the political context it means that current jobs in one industry, however short-term their tenure, are valued more highly than job forecasts in an emerging economic sector. There was abundant evidence of this in the election in relation to employment options in different areas of energy production, present and future. It is partly a function of the ‘marketisation’ of contemporary thinking – people are more likely to calculate the value of things in real time.

Dispute resolvers have partially come to terms with the intertemporal utility function with clients often over-valuing current financial outcomes even where later settlements would involve a greater quantum. For this reason experienced mediators do not over-do their ‘litigation misery’ speeches as clients cannot, in real time, project their current expectations and feelings into a future which could be two years away. Dispute resolvers are also familiar with the ‘time-value’ of money and the ‘endowment effect’ and how these can distort parties’ decision-making in negotiations. Needless to say time factors are easier to address in discrete dispute resolution events than in the clamour of national elections.

Style and Trust

People are influenced by those who are likeable and personable and show kinship with those they are attempting to influence. Conversely, they are less impressed by those who seem remote, wordy and abstract in their communication styles. Politicians are not exactly in a highly-trusted profession, like those who protect and rescue (think nurses and ambos) but everything is relative and protective and empathic language can well lead to respect, then trust. As the politico Napoleon advised, ‘…it’s not what’s true that counts but what people think is true’, and ‘affinity truth’ is a function of the style and perceived trustfulness of communicators. ‘In-group vs out-group’ thinking reinforces notions of trust and distrust in the political domain – the rise of tribal politics aggravates antipathy toward the Other, as was evident in warrior electoral rhetoric (and sense of relief once it was over).

Dispute resolvers are aware of the need to establish trusting relationships with clients, and of how easy it is for trust to be lost. Trust in mediators and mediation procedures by each side provides a bridge between parties who distrust each other. However some features of dispute resolution processes could have trust-defeating effects, particularly the use of shuttle meetings and avoidance of direct contact among parties. This tendency in some dispute resolution cultures enhances the ‘in-group/out-group’ syndrome experienced in contemporary politics. There are probably still lessons to be learned in this department by open-minded dispute resolvers.   resolvers

DR Teaches About Elections, Elections about DR

There are many moveable parts in popular elections, some operating at conscious levels and others motivating electors unconsciously. No simple reduction can be made about why electors decide and choose in particular ways. However the cognitive and social biases and other heuristics referred to in this piece emphasise the non-deterministic nature of human decision-making in both electoral and dispute resolution circumstances. Needless to say some of these factors coincide with one another and others are mutually inconsistent but elections provide evidence of the expanding knowledge base required in the dispute resolution disciplines.  And dispute resolvers have a significant knowledge bases, experiences and techniques to contribute to the understanding of political behaviour, particular in relation to the effects of biases and emotions in human decision-making. At the end of the day homo politico and homo disputatio might not be not that far removed.

That declaration: in the recent federal election the author worked for Getup in Warringah and for the Greens in Macpherson.

Laurence Boulle is Director of Independent Mediation Services Pty Ltd and Belle Wiese Professor of Legal Ethics at Newcastle Law School. He is grateful to Tony Spencer-Smith for insightful observations on a first draft.

Written by Rosemary Howell, University of New South Wales. First posted on the Kluwer Blog on May 22 2019.

National Mediation Conferences are important events. Apart from the great opportunities to network with fellow professionals there is the really important opportunity to see the intersection of research and practice at work.

Last month’s Australia’s National Mediation Conference did not disappoint.
For me the highlight was becoming acquainted with a bold Australian initiative sponsored by the Dispute Settlement Centre of Victoria (DSCV). Focussing on community disputes about things like fences, trees and noise the Centre had an ambitious plan to:
• devise a reliable process to identify their user profile and the differing levels of complexity their disputes presented;
• adopt the Sander approach and ‘’fit the forum to the fuss’;
• establish realistic settlement rates based on dispute characteristics; and
• develop a realistic budget to ensure the outcome could be realised.

The process – build a strong research base

The first step for the DSCV was to find the right project leader.

They found the perfect custom-made candidate in Danielle Hutchinson. Co-Founder of Resolution Resources, a lawyer, mediator and academic, Danielle was already an ADR Specialist at the DSCV.
Seeking a sound structural base for the project, she drew on 3 key research resources which provided learnings about the relevance of party goals and dispute features namely:
• The Singapore report by Danielle Hutchinson and Emma-May Litchfield (2016)
This was the inaugural report from the Global Pound Conference Series 2016-17. In this report the authors identified the needs, wants and expectations of parties in dispute and placed them on a continuum – creating three levels of ‘dispute-savviness’ – the expert dispute resolver, the competent dispute resolver, and the ineffective dispute resolver.
• Why do people settle? by Julie Macfarlane (2001)
In her paper Macfarlane examines the assumptions and behaviour of participants in dispute settlement processes – enhancing our understanding of why some disputes settle, and others do not.
Her key argument is that it is how disputants see things and how they make sense of their conflicts that have the greatest influence on outcomes – a significant step away from the rational, predictive model emphasized by most legal scholarship.
• Matching Cases and Dispute Resolution Procedures (2006) by Frank Sander and Lukasz Rozdeiczer. The significance of this work is the authors’ analysis of disputes leading to guidance for lawyers and their clients’ in:
1. selecting a particular process and then
2. designing a new or hybrid process specifically fitted to the needs of the parties.
They proposed that matching processes may be just the first step of the process choice. What needed to follow was the parties modifying their preferred procedure to suit the particular needs of their dispute.

And so TRAMM was born!

Triage Resourcing Modality Matrix is more than a mouthful.
What it does is:
• Collects and makes sense of all the information collected at intake;
• Factors in the context of the dispute;
• Identifies the process that is the best match for the parties (Triage);
• Allocates appropriate resources; and
• Uses ongoing satisfaction measures to validate triage consistently.

How it works – a psychometric approach to creating an analytical tool

The tool presents a compelling visual of everything in play when the DSCV is first contacted. The tool has:
• A vertical axis factoring in parties aspirations and goals and linking them to the likelihood of resolution (drawing on Hutchinson & Litchfield and Sander’s work); and
• A horizontal axis identifying and ranking factors likely to help or hinder resolution (drawing on the research of Sander and Macfarlane).

The output?

The power of the tool is in combining the two hierarchical axes to:
• Predict an outcome;
• Recommend the dispute resolution process that is most resource-effective and best for the dispute; and
• Maximise opportunities for a good outcome.

The human element

Trained mediators, operating as dispute assessment officers, input the data from an initial telephone assessment. They make their own assessment of likely resolution and the best process to use. This is used to continually test TRAMM’s accuracy against that of experienced assessors.

The results are remarkable!

The big picture is more complex that there is room for in this blogpost however a few key outcomes caught my attention:
• TRAMM is outperforming human operators in matching parties to processes and in predicting outcomes;
• The linkage to the Singapore Report and its identification of ‘dispute savviness’ really shows its value here. The emerging data from TRAMM provides the opportunity to explore and demonstrate whether:
o ‘dispute savviness’ makes dispute goals more realistic and more amenable to resolution;
o disputants lacking ‘dispute savviness’ have a disproportionately higher impact on likelihood of resolution and whether it is a wise investment to target them in the preparation process and coach them to higher levels of ‘dispute savviness’; and
o whilst one of the intentions of the project was to maximise resource effectiveness it was not conceived as a cost-cutting exercise.

This is a great outcome
In particular there are 2 overarching achievements that deliver a loud message:
• at a time when the academic and practising worlds seem far apart this is a case study in what happens when we bring them together. One and one has truly made three; and
• when a good outcome, rather than forcing budget cuts, is the goal we do the right thing for the right reason – and surprisingly, as happened here, more cost effective outcomes often result. Well done Danielle and DSCV.

Written by Dorcas Quek Anderson, Singapore Management University School of Law.

This post is based on a presentation made at the National Mediation Conference, Canberra, April 2019. The presentation has been drawn from two articles, Ethical Concerns in Court-Connected Online Dispute Resolution (2018) 1-2 International Journal of Online Dispute Resolution 20, and The Convergence of ADR and ODR within the Courts: The Impact on Access to Justice (2019) 38(1) Civil Justice Quarterly 126.

The proliferation of court ODR systems

Online dispute resolution (ODR) systems have been increasingly embraced by the courts in many countries as the new way to enhance access to justice. Notable examples include the future Online Solutions Court in England and Wales, the Civil Resolution Tribunal in British Columbia, Utah’s ODR system for small claims, and the internet courts in China.

This diagram from the US Joint Technology Committee’s report on ODR for Courts (p. 3) helpfully illustrates how a full-fledged court ODR system typically brings the use sequentially through the steps of triage or problem diagnosis, negotiation, facilitation and online hearings:

The Civil Resolution Tribunal (CRT) in British Columbia is probably one of the most well-developed systems. Designed to handle condominium property claims and small claims (and motor accident claims this year), the CRT features an end-to-end process combining dispute resolution phases and focusing on early participation by parties. The first phase provides initial problem-diagnosis and self-help through the online tool Solution Explorer. This software uses guided pathways to help the user learn more about the dispute, and then diagnoses the problem according to relevant legal rights, and provides tools such as letter templates that can deal with the problem. If the dispute is not resolved at this stage, the user can formally commence a claim through an online intake process that will give notice of the claim to the opposing party. The claimant is then brought to the second phase in which the parties are able to negotiate directly using the online system. The third phase of facilitation introduces the human facilitator to the process. The facilitator draws on a wide range of ADR processes, including mediation and non-binding neutral evaluation, to assist the parties to reach an agreement. In the event that the parties cannot agree, the facilitator takes on a case management role and helps the parties narrow their issues and prepare for the next phase. The final phase of adjudication is usually conducted remotely through asynchronous communication channels. If an oral hearing is needed, it is conducted via telephone or video-conferencing.

Why examine “old” ethics?

These ODR systems offer unprecedented opportunities for the thoughtful and imaginative application of dispute system design principles to meet the goals of the courts, and, as noted by ODR commentator Rabinovich-Einy, generate legitimacy in court processes. It also means that the goals and core values underlying court dispute resolution should be clearly articulated and guide the design of these systems.

In this regard, my research looks back at the “old” ethical difficulties that used to confound the mediation community and the courts, and asks whether these challenges will resurface in the new ODR context. My conference presentation examined two “old” ethical difficulties concerning levelling the playing field between disputants; and whether the system should have distinct ADR processes. This post focuses on the first issue.

Levelling the playing field between disputants

One distinctive characteristic of the highly successful court ODR systems is the provision of guided triage that empowers users to resolve the dispute. The Solution Explorer tool in the CRT uses guided pathways to help the disputant learn more about disputes, then to diagnose the problem in terms of the relevant legal rights and to provide self-help tools. The Utah system for small claims has placed even greater emphasis on education. Apart from providing customised self-help resources and legal services at the start of the process, this system also assigns a facilitator to the case once all the parties have joined the Web portal. One of the facilitators’ key functions is to provide limited legal advice and provide individualised education and assistance. When describing the system, Utah Supreme Court justice Deno Himonas commented that the relevant rules may have to be amended to allow the facilitator to give limited legal information even though he or she is not acting as counsel for either party.

The emphasis on customised education and problem-diagnosis has resulted in ODR as the ‘fourth party’ expanding the scope of the courts’ intervention in disputes. The court’s role is being transformed from an impartial and detached adjudicator to a more proactive problem-solver. Notwithstanding the great gains to be reaped from this development, this change results in considerable tension between the following ethical principles:

This tension is not new to mediators. We often observe informational asymmetry amongst the disputants. One party may be a repeat player in the courts or may have received sophisticated legal advice. By contrast, the other party could be misinformed about his or her legal rights. As mediators, we are familiar with the struggle in deciding how much to intervene to help the disputants to make informed decisions. This dilemma is apposite in court-connected mediation, where it is arguably more important to uphold the perception of the court mediator’s impartiality.

In the court ODR context, this dilemma could be more acute. The ODR system’s value lies in its great potential in levelling the playing field between parties where there is information asymmetry. Notably, 94% of the parties resolved their dispute at CRT’s Solution Explorer stage without requiring further intervention.

However, should the courts level the unequal playing field? There is the risk of the courts taking on a more active role than they have been accustomed to. On this point, Katherina Palmgren, in her report exploring the use of ODR in Victoria (p. 7), noted below the faint distinction between providing legal information and legal advice. The latter is, of course, deemed more objectionable, but the courts may inadvertently provide legal advice when giving customised problem diagnosis.

One of the main concerns in relation to the online court is the provision of ‘legal information’ by the court to the court user during the exploration stage of the online process. This is a new and foreign concept to the courts which gives rise to the question: what is the distinction between ‘legal information’ and ‘legal advice’? Is this a blurry line that ought not be walked by the courts? Some say yes, but many say no. Take for example registry staff, they walk this line every day and do not necessarily think it is a difficult one. Simply put, when you provide information that is general and factual in nature such as the applicable legal principles on a subject matter, that is legal information and educational in nature. When you provide information that is tailored to the particular facts of a case, that is legal advice. Common concerns raised in relation to the provision of legal information during the exploration stage are: what if the information provided at the exploration stage is incorrect? What if there is a loophole in the legislation that a lawyer could have advised on?

We also need to ask the related question of whether the playing field should be levelled in all cases involving informational asymmetry. Will the courts being seen as assisting one party more than the other? This question may not be an acute concern in claims involving self-represented disputants. However, this tension warrants serious consideration once the ODR system is extended to other types of legal claims where lawyers are involved and there is the resulting expectation of more limited court intervention in levelling the uneven playing field. When lawyers are allowed to participate in the ODR system, it is arguable that the parties expect an inherently unequal playing field owing to the differing levels of legal assistance. In such circumstances, the courts’ efforts to level the playing field could be perceived as unwelcome interference. This issue has yet to arise in systems such as the CRT, where parties are not allowed to have legal representation. Nonetheless, as court ODR expands its scope, it is very likely to be used in more complex and higher value claims in which lawyers cannot realistically be excluded. The courts therefore need to discern when its proactive intervention through educating the parties will be perceived as compromising its even-handedness.

Looking ahead, it is not inconceivable for future court ODR systems to provide the disputants not only with legal information, but also assisted decision-making or negotiation tools. These tools could be used at the negotiation and facilitation stages to enable court users to understand the merits of their case more accurately, or to arrive at negotiated agreements that maximises value. These tools are currently available outside the court context. If incorporated into a court ODR system, they will empower disputants to make well-informed decisions. Again, there could be an impact on the courts’ perceived impartiality. Will the suggestions of these tools be seen as being endorsed by the courts? What if a disputant takes issue with the input of these tools, arguing that he or she was misled to arrive at a settlement? Also, will the disputants be assured that the tools provided by the ODR system is giving equal assistance and support to each person?

Implications for Court ODR

There are many practical implications arising from the above questions. To avoid the perception of partiality, the courts could take practical steps to dissociate themselves from the provider of the legal information. For instance, they could collaborate with external agencies so that the resources provided are not attributed to the courts. In this respect, Utah’s system provides access to licensed paralegal practitioners that are not employed by the courts. During the pilot of the small claims project, the facilitators were volunteers who did not represent the courts or either of the parties. The perception of even-handedness could also have a discernible impact on the design of the online self-diagnosis tools. Although the system provides individualised and customised triage, it could simultaneously assure users that all parties in the dispute are provided with the same information and tools. The courts also have to carefully consider whether the ODR system should incorporate decision-making or negotiation support tools in the future.

The enduring relevance of ethical principles

Dispute resolution is slowly but surely evolving in the private and court contexts, bringing about exciting possibilities by breaking down conventional boundaries between modes of dispute resolution, and introducing algorithmic support tools and information. This post seeks to encourage a deeper consideration of how dispute resolution ethical principles will remain relevant in a rapidly changing environment. Some of the “old” ethical conundrums have to be confronted in order to develop systems that are grounded on clear goals and values. Despite swift changes in dispute resolution, the foundational ethical principles have enduring value for the future. Will we draw from our past lessons to guide us in the future development of dispute resolution? Do share your views on what other “old” ethical issues could resurface in the ODR environment.

[Free Image by Augusto Ordonez, Pixabay]

On 10 April 2019, Judge Dowdy of the Federal Circuit Court published his reasons for refusing to make a consent order that an employment law matter be referred to mediation by a Judge.

The parties in Wardman & Ors v Macquarie Bank Ltd [2019] FCCA 939 applied for consent orders to resolve some procedural matters and refer the substantive dispute to mediation by a Judge, pursuant to s 34 of the Federal Circuit Court Act 1999 (Cth) and rule 45.13B of the Federal Circuit Court of Australia Rules 2001 (Cth). Rule 45.13B(2)(a) explicitly anticipates that an order referring a proceeding to mediation may order that the mediator appointed be a Judge:

…(2) The mediator for the mediation must be: (a) a Judge; or…

Nonetheless, Dowdy J contacted the parties informing them that he believed he should not make an order that a Judge act as a mediator. Instead, he made an order for a Registrar to act as mediator. His Honour’s reasoning for his refusal to appoint a Judge as mediator can be summarised by the following 3 propositions:

1. Mediators and Judges perform distinct roles
2. Acting as a mediator is incompatible with the Constitutional role of a Judge (and Rule 45.13B(2)(a) is invalid)*
3. Judges are not qualified to act as mediators

1. Mediators and Judges perform distinct roles

Source of authority

• The Constitutional power to mediate is the Conciliation power in s 51(xxxv).
• A Judge exercises judicial power under s 71 of the Constitution.

Facilitation of consensus v determination of dispute

• Mediators aim to resolve disputes by consensus.
• Judicial power is an elusive concept, but at its core is the power to decide controversies (ie, to determine the outcome of disputes).

Context of decision-making

• Mediation is typically private, confidential, informal and non-adversarial.
• Judicial power must be administered in public and reasoning must be published. The judicial process is primarily adversarial.

2. Acting as a mediator is incompatible with the Constitutional role of a Judge

Judicial power must be exercised according to judicial process

• Judicial process requires (with limited exceptions) open and public inquiry, application of rules of natural justice, identification of law and facts, and application of law and facts to decide the outcome (see Grollo v Palmer).
• Mediators meet in private, sometimes with only one party at a time, do not decide facts or law, do not make decisions, mediated decisions are not required to be made according to legal principles, and neither reasons nor decisions are published.

Judges cannot perform functions incompatible with judicial power

• Judges cannot exercise non-judicial functions that would prejudice their capacity to discharge effectively the judicial powers of the Commonwealth
• Rule 45.13B should be read to preclude a Judge who has presided over a mediation from subsequently hearing or determining the case.

[31] If I had acted as a mediator in this case as requested by the parties I would have sterilised and rendered inoperable my judicial power to hear and determine the case. In other words, by agreeing to act as a mediator I would have undertaken a function which was incompatible with, and which would have precluded me from, discharging my obligation as a Judge to hear and determine a matter which in the regular course had be docketed to me by the registry of the Court.

Courts and Judges cannot and do not provide advisory opinions

• Judge Dowdy referred to Plaintiff M68/2015 v Minister for Immigration and Border Protection as authority for the proposition that Chapter III Courts and Judges cannot provide advisory opinions.
• Mediators in court-connected mediations “invariably” provide advisory opinions.

[32]…parties to a mediation invariably expect the mediator to give his or her views on their respective prospects in the context of the existing or foreshadowed litigation which the mediation is seeking to obviate and on the reasonableness of any proposed settlement. This is the case whatever the kind or model of mediation being undertaken. It is particularly the case that economically weaker and more vulnerable parties desire the opinion of the mediator on such matters.

Mediation is not a traditional function of courts

• Some functions other than the adjudication of rights were traditionally exercised by courts and therefore fell within the concept of judicial power contemplated by the authors of the Constitution. For example, administration of trust assets, winding up companies, maintenance and guardianship of infants, grants of probate, and making of rules of court.
• The process of mediation cannot be accepted to have been a traditional or historical feature of the powers exercised by courts.

Mediation functions are distinct from judicial power

• This proposition was confirmed by the Boilermakers case – a power to prevent and settle disputes by conciliation and arbitration is completely outside the realm of judicial power.
• Although mediators and Judges both practise fairness, patience, courtesy and procedural fairness, only a Judge determines a justiciable issue.
• Because the power to mediate falls outside judicial power, Dowdy J concluded that:

[38]…neither Parliament nor the Judges of this Court can make rules of court that authorise or require a Judge of this Court to act as a mediator

• While Courts and Judges regularly encourage settlement and adjourn hearings to allow settlement negotiations to occur, it is not considered appropriate for Judges to participate in those negotiations themselves.
• There is no inherent connection between mediation, conciliation and legal proceedings, as not all mediators are legally trained and not all mediations occur in connection with litigation.
• Mediation is not incidental to the exercise of judicial power.

3. Judges are not qualified to act as mediators

• Mediation is a craft that requires specific education and training, as well as accreditation and ongoing professional development.
• Eminence, judicial ability and legal knowledge and experience do not necessarily equip Judges to act as a mediator.
• Judicial Registrars of the Federal Circuit Court are trained and accredited mediators.
• There are thousands of appropriately qualified and accredited mediators who could conduct private mediation at an affordable cost.
• It is inappropriate to appoint a Judge to mediate a case merely to access the authority of the Judge to induce or extract a settlement.
• Judges should give exclusive primacy to their judicial role rather than acting as a mediator in cases before the Court.
• Judges have busy dockets and it is unjustifiable to take time out of the activity of judging in order to act as a mediator.
• Judges should not risk being called as witnesses about what happened in private mediations.
• If a Judge acting as a mediator gave an evaluation of the legal case, and a Judge acting as a Judge subsequently decided differently, the standing of Courts and Judges would be diminished.

Comment

This judgment provides some very interesting insights about court-connected dispute resolution practice. Dowdy J has lived experience as a senior legal practitioner with many years’ participation in court-connected mediation and some of his reasoning is based upon that personal knowledge. In paragraph [32] quoted above,  His Honour claimed that mediating parties, particularly weaker or more vulnerable parties, invariably expect the mediator to express views about both the likely outcome of litigation and whether or not a proposed settlement is reasonable. His Honour continued:

[33] It so happens that, in the course of my practice as Counsel over the 25 years prior to my appointment to this Court I appeared at well over 125 mediations, regularly before the pioneers of mediation in Australia, being Sir Laurence Street QC and Mr Trevor Morning QC. In my experience virtually all mediators are prepared at a mediation over which they preside to advise in general terms, both on the parties’ respective prospects of success in any litigation and the reasonableness of the proposed settlement terms. Some very few mediators may decline to give their views on prospects of success, but I have never known or heard of a mediator failing to give, either expressly or at the very least impliedly, his or her approval and approbation to the settlement which successfully concludes the relevant mediation.

His Honour returned to his strong view about what litigating parties expect from a mediator:

[55]…by not evaluating the parties’ prospects of success I would have denied to them a characteristic function expected of mediators (see [32] and [33] above) which would be provided by Judicial Registrars and private mediators.

The mediations described fall far outside the concept of facilitative mediation. If evaluation is a “characteristic function” of court-connected mediation, then this should be acknowledged properly and taken into more serious consideration in training and accreditation processes. The question of whether or not litigating parties expect this style of mediation (a) because it is what they have experienced before, or (b) because it is their preference over other styles, is also worthy of interrogation. Should facilitative mediators market their services from a point of difference, instead of assuming that facilitation is understood by prospective clients as the “standard” form of mediation?

The equating of mediation with conciliation in the judgment was the means by which His Honour located the mediation function within the Constitutional powers. The definition of mediation is hotly disputed within the dispute resolution community (as is whether Dispute Resolution is preferable to Alternative Dispute Resolution). However, this judgment raises again the question of whether or not court-connected dispute resolution of the character described and expected should more appropriately be called “conciliation”, in order for it to be distinguished from other kinds of dispute resolution practice.

There is great potential for the private mediation sector to provide affordable dispute resolution services to litigants. Judge Dowdy identified many problems with using Judges to mediate, when there is a surplus of appropriately qualified and accredited practitioners available to assist parties navigate a path to settlement. What creative ways can the mediation profession use to attract the respect and legitimacy that parties are seeking when they prefer senior legal minds to act as mediators of their disputes?

*Note: The decision specifically relates to Judges who exercise the judicial power of the Commonwealth of Australia. The Commonwealth Constitution mandates separation of judicial power and the Commonwealth legislature cannot confer non-judicial functions on Judges except those that are incidental to their judicial function (see Boilermaker‘s case). The situation is different in state jurisdictions (see Kable and Momcilovic cases).