This article first appeared in Precedent, the journal of the Australian Lawyers Alliance, issue 141, published in August 2017 (Sydney, Australia, ISSN 1449-7719), pp 12-16.  It has been reproduced with the kind permission of the author and the ALA.  For more information about the ALA, please go to: www.lawyersalliance.com.au.

INTRODUCTION

In every dispute resolution process the parties will find a balance along a spectrum from “it’s only about the money and settlement” to “we can manage our conflict much more broadly than a narrow focus on the past events related to this dispute.” There is a tension between these two extremes. In 2005, Baruch Bush and Folger reflected upon this tension, which they had expressed in their first edition of The Promise of Mediation:

‘In our view, the potential that mediation offered to foster and support positive human interaction within conflict was being squandered. Instead mediation was being used to shore up institutional processes that operate to control, contain, and settle conflict, because of a prevailing view that conflict interaction is a fundamentally negative social force’.[1]

On the one hand, the ability of dispute resolution (DR) processes other than formal trial to support people to resolve their differences in a holistic way is touted as a desirable attribute. On the other hand, within legal contexts, the purpose of DR processes is understood by many to be settling disputes quickly and cheaply, keeping them out of the formal trial process. There is a tension between those who advocate that one or other of these purposes is the ‘true’ purpose of DR processes. Strong opinions towards a settlement focus are particularly common within the context of formal justice systems and whenever lawyers are involved. In the court-connected context, the focus of DR is often the ending of a litigation process and avoiding further legal costs, as distinct from resolving a shared problem. Lawyers tend to focus upon settlement within the boundaries of what would be legally appropriate as the purpose of DR.[2]

This article revisits some of the promises of DR, to explain the imaginative potential that motivates those who champion the resolution-focused end of the spectrum. It then considers whether and how the context of the formal justice system shapes DR – including expectations about its proper purpose. The question of what parties want from DR is considered. The ways lawyers shape DR when they are involved in it is examined. Attention then turns to the reasons why a predominant focus upon the settlement purpose of DR may be appropriate and desirable. Conversely, the drawbacks of an over-emphasis on settlement to the detriment of other opportunities are considered. The conclusion from this discussion is that ultimately a broad resolution-focused approach may be maintained even within the context of the formal justice system; parties ought to decide what purposes they would like to pursue through their DR process; and lawyers ought to ensure that they are supporting their clients to make well-informed decisions about the optimal way to approach DR.

THE PROMISE OF DR

The foundations of the modern DR field were built on the multi-disciplinary pursuits of individualism, relationship, and peace-building. The promise was that DR would offer an alternative to existing processes that would free people in dispute from the confines of oppositional adversarialism, an exclusive legal lens, and untempered power imbalance. DR emerged from dissatisfaction with existing processes, promises about what new approaches offered, and changing attitudes towards conflict.[3] Hence the term ‘alternative’ dispute resolution (ADR) – being an alternative to trial or unassisted negotiation (which is typically conducted in an adversarial settlement style). Today, many in the field prefer to drop the ‘alternative’ tag, on the grounds that it misrepresents the central place that DR processes play in the life of disputes and justice systems.[4] Others argue just as ardently that the ‘alternative’ should stay, as a marker of history and because it distinguishes DR processes from the formal judicial system.[5] The promise of DR as an holistic and tailored approach to conflict and disputing is something that is universally acknowledged as at least a possibility.

DR IN THE CONTEXT OF THE FORMAL JUSTICE SYSTEM

The biggest growth area of DR has been within institutional contexts, particularly government and the justice system. Inevitably, when DR has been adopted by institutions, it has been adapted accordingly:

‘True to ADR’s essential characteristics of innovation, creativity and experimentation, ADR in the courts involves continuing adaptation and evolution of ADR processes. But as governments, tribunals, and courts borrow, co-opt and adapt ADR methods, an ironic shift becomes apparent. Control over the dispute resolution processes moves to the institution. …In short, rather than be designed to meet the specific needs and exigencies of the parties to the particular dispute, ADR techniques are adapted to fit the goals of the institution or system.’[6]

Typically, the reason institutions introduce DR is to settle disputes quickly and at minimal cost. Within court systems, DR has been adopted as a way to solve problems of delay and inaccessibility – effectively shifting disputes out of formal litigation processes and supporting parties to negotiate an outcome earlier than they otherwise would.[7] The purpose of settlement is very much prioritised where these are the bases upon which a DR system has been established.

Where DR is court-connected, because it occurs within the context of a litigated matter, there are obvious reasons why the focus of the process tends to be upon the facts of past events, the legal issues between the parties, and the assessment of potential outcomes against the anticipated judicial view. Where trial or abandonment are the likely alternatives to a negotiated outcome, parties will naturally consider their options against those possibilities. Lawyers are more likely to be involved in court-connected DR processes and they will bring their professional legal lens to the process and dispute. Law and legal rights tend to dominate court-connected DR.[8]

However, there are no absolute barriers to a broad, relationship-focused, adaptable, holistic approach to the parties’ disagreement being taken within court-connected DR. There are no legislative definitions of DR, guidelines or rules that limit court-connected DR to a settlement and/or law-oriented focus on the dispute. Rather, there has been a trend for court-connected DR to be defined in generic terms that can potentially incorporate a wide range of DR practices.

WHAT PARTIES WANT FROM DR

The Productivity Commission’s latest report about access to justice noted that there are deficiencies in the availability, quality, and utilisation of data about the civil justice system – in particular, the experiences of, effects on and costs incurred by end users.[9] The LAW Survey has provided some data at a population level.[10] Data is often gathered from lawyers and institutional parties rather than directly from individual end users of DR, generally because of the ease with which data can be gathered from ‘repeat players’ compared with individual one-off parties.[11] Research conducted within service provider organisations, often in the form of client feedback surveys, presumably provides data about party expectations. However, these are rarely published publicly.

From the limited evidence available, we know that parties often want to explore a broader range of issues in DR than their lawyers think they do.[12] For example, Tamara Relis’s research involving medical malpractice claims demonstrated that although the lawyers for all parties thought that the dispute was mostly about money, and one-third of plaintiff lawyers thought their clients only wanted money, plaintiffs reported wanting to explore a much broader range of matters in the DR process.[13] Research has also revealed that parties’ experiences of process are strongly aligned with their satisfaction, whereas lawyers tend to evaluate DR according to whether or not a settlement was reached.[14]

HOW LAWYERS INFLUENCE WHAT PARTIES WANT AND WHAT THEY CAN GET FROM DR

Lawyers have significant influence in shaping their clients’ expectations about DR processes, the way that the process is conducted, the subject matter discussed, and the outcomes achieved.[15] Lawyers actively encourage their clients to reach sensible settlements, inevitably assessed according to the lawyer’s view of what is reasonable. The potentially broad scope of outcomes that could be achieved through DR may be limited by lawyers’ views that the appropriate scope of DR is narrow and focused upon likely legal outcomes weighed against financial costs and risks.[16] Lawyers modify their clients’ expectations about what DR is, what role they should play in it, how the negotiation should be approached, and what could be achieved.[17] There is scope for greater research into the reasons for the widely recognised narrowing of DR by legal service providers. Some contributory factors include lawyers’ professional identity,[18] interpretation of their ethical duties,[19] personality,[20] and legal training.[21]

WHY SETTLEMENT IS DESIRABLE AND APPROPRIATE

Settlement undoubtedly has many attractions for disputing parties. It means that negotiations about the dispute can cease and the parties can spend their time, money and emotional energy on other things. Where the settlement involves payment from one party to another, both are able to move into the future with certainty about their financial situation. Where litigation has commenced, the settlement will also signal the end of the parties’ involvement with the formal justice system about their dispute. Ultimately, these benefits of settlement are desirable.

Furthermore, for many parties, the quantum of settlement payment is their primary concern about the dispute. Therefore, the negotiations may be focused upon monetary quantum and conducted in a distributive manner – where the limited pie is divided through a series of offers and counter-offers. Where one of the parties to a negotiation is an insurer or organisation with whom the individual party has no ongoing relationship, it is arguable that there is little prospect of the broader promises of DR to be explored through the process of resolving the immediate dispute.

Even where other styles of negotiation are adopted, whereby the parties expand the pie by identifying scope for negotiation about payment manner or timing, or explore one another’s interests to see if creative opportunities can be found, ultimately, the negotiation at some point will focus upon the quantum to be paid by one party to another. Settlement, whether on simple or complex terms, is the ultimate shared goal between the parties.

THE DRAWBACKS OF A SETTLEMENT FOCUS

There are, however, drawbacks to an over-emphasis on settlement. The potential for creative and imaginative exploration of resolution possibilities is hindered by a preoccupation with settlement of the immediate dispute (particularly where the focus is the immediate dispute as defined by the pleadings). Distributive bargaining locks parties into an assumption that their options for resolution are limited. The chances of impasse are higher than where a more curious and flexible approach is taken to the negotiation.

One of the greatest lost opportunities of a settlement focus in DR is that the possibility that the parties will achieve relational benefits of DR is very low. The promise of DR includes the ability for people in conflict to come to a better understanding of the conflict dynamics to which they have contributed, of the perspective of the other parties to the dispute, and of ways in which their relationships may be conducted in the future to avoid similar disputes remaining unresolved. A relational approach is appropriate in family law, workplace conflict (including compensation claims), commercial matters related to business dealings, estate matters, and all other disputes between parties who have a past, present or future relationship of some kind.

Even where parties do not have a relationship, there may be benefits that could be derived by taking an approach to DR that is broader than a monetary settlement focus. The parties in dispute may not have a relationship in personal injuries matters where an insurer manages the claim-making, in one-off consumer complaints, or discrimination claims made outside of personal relationship contexts. In all of these kinds of dispute, there is a human element to the conflict. The claimant may benefit greatly from the opportunity to tell their story of loss, to receive an explanation or apology, and to learn about changes that have been made to avoid harm to others in the future. It may be appropriate in some circumstances for the outcome of the DR process to include some kind of public statement about the resolution that has been reached.

CONCLUSION

The title of this article asks “Are we here to resolve our problem or just to reach a financial settlement?” and the answer is “It depends.” The context of legal services or litigation does not preclude parties from deciding to pursue much broader outcomes than ‘settlement on terms mildly disagreeable to both parties’. The parties whose dispute is being managed should be put in a position to choose the scope of their DR process. For some, a narrow, predominantly money focus will be appropriate. For many, the DR process presents an opportunity to explore their conflict with the other party and achieve a range of potential benefits in process, content and outcome. Lawyers who understand the promise of DR and the different ways that it might be practised are best placed to support their clients to capture the full remedial imagination of the field. Although there are some limitations to the data available about party preferences, there is sufficient evidence of disconnect between what clients and their lawyers expect and want from DR processes. That evidence should provide food for thought for lawyers to ensure that they are serving their clients optimally in relation to the resolution and/or settlement of their disputes.

Dr Olivia Rundle is a Senior Lecturer in Law at the University of Tasmania. EMAIL Olivia.Rundle@utas.edu.au.

The author thanks the members of the Australian Dispute Resolution Network, whose scholarly engagement in traditional ways and through social media enhances and furthers my thinking about lawyers, dispute resolution and civil justice (adrresearch.net and @ADRResearch).

[1] Robert A Baruch Bush & Joseph P Folger, The Promise of Mediation: The Transformative Approach to Conflict (Revised ed, 2005, Jossey Bass), 1.

[2] Olivia Rundle, ‘Lawyers’ perspectives on “what is court-connected mediation for?”’ (2013) 20(1) International Journal of the Legal Profession 33.

[3] Carrie Menkel-Meadow, ‘Why Hasn’t the World Gotten to Yes? An Appreciation and Some Reflections’ (2006) Negotiation Journal 485.

[4] Laurence Boulle and Rachael Field, Australian Dispute Resolution Law and Practice (2016, LexisNexis).

[5] Tania Sourdin, Alternative Dispute Resolution (5^th ed, 2016, Thomson Reuters).

[6] Margaret A Shone, ‘Law Reform and ADR: Pulling Strands in the Civil Justice Web’ (Paper presented at the Australasian Law Reform Agencies Conference, Wellington, New Zealand, April 13-16 2004) 6.

[7] The Hon Justice James Spigelman, ‘Just, Quick and Cheap – A Standard of Civil Justice’ (Paper presented at Opening of Law Term, Parliament House, Sydney, 31 January 2000); Nancy A Welsh and Peter T Coleman, ‘Institutionalised Conflict Resolution: Have We Come to Expect Too Little?’ (2002) 18 (4) Negotiation Journal 345; Kathy Mack, Court Referral to ADR: Criteria and Research (National ADR Advisory Council and Australian Institute of Judicial Administration, 2003) 17. Kathy Mack noted that courts have rarely articulated why they introduced DR. Nadja Alexander, ‘Mediation on trial: ten verdicts on court-related ADR’ (2004) 22(1) Law in Context 8, 17.

[8] Craig A McEwen and Roselle L Wissler, ‘Finding Out If It Is True: Comparing Mediation and Negotiation Through Research’ (2002) University of Missouri Journal of Dispute Resolution 131, 133; Jacqueline M. Nolan-Haley, ‘Court Mediation and the Search for Justice Through Law’ (1996) 74 Washington University Law Quarterly 47, 64.

[9] Productivity Commission, Access to Justice Arrangements (Inquiry Report No. 72, 2014), Chapter 25.

^[10] Christine Coumarelos et al, Legal Australia-Wide Survey: Legal Need in Australia (Law and Justice Foundation of NSW, Volume 7, 2012) http://www.civiljustice.info/cgi/viewcontent.cgi?article=1024&context=access.

[11] Jane Elix and Tania Sourdin, Review of the Financial Industry Complaints Service 2002 – Final Report (Community Solutions, La Trobe University, University of Western Sydney, 2002) https://www.fos.org.au/custom/files/docs/fics_final_independent_review.pdf, Appendix B.

[12] Robert A Baruch Bush and Sally Ganong Pope, ‘Transformative Mediation: New Dimensions in Practice, Theory, and Research’ (2002) 3 Pepp. Disp. Resol. L.J. 1 cited in Louise Phipps Senft and Cynthia A Savage, ‘ADR in the Courts: Progress, Problems, and Possibilities’ (2003-2004) 108 Penn St. L. Rev 327, 335.

[13] Tamara Relis, Perceptions in Litigation and Mediation: Lawyers, Defendants, Plaintiffs and Gendered Parties (Cambridge University Press, 2009).

[14] Carol Bartlett, ‘Mediation in the Spring Offensive’ (1993) Law Institute Journal 232; Marie Delaney and Ted Wright, Plaintiff’s Satisfaction with Dispute Resolution Processes: Trial, Arbitration, Pre-Trial Conference and Mediation (1997); Jill Howieson, ‘Perceptions of Procedural Justice and Legitimacy in Local Court Mediation’ (2002) 9(2) Murdoch University Electronic Journal of Law http://www.murdoch.edu.au/elaw/issues/v9n2/howieson92_text.html; Judith Resnik, ‘Mediating Preferences: Litigant Preferences for Process and Judicial Preferences for Settlement’ (2002) Journal of Dispute Resolution 155; Brad Reich, ‘Attorney v Client: Creating a Mechanism to Address Competing Process Interests in Lawyer-Driven Mediation’ (2002) 2 Southern Illinois University Law Journal 183; Nancy Welsh, ‘Stepping Back Through the Looking Glass: Real Conversations with Real Disputants About Institutionalized Mediation and Its Value’ (2004) 38 Ohio State Journal on Dispute Resolution 573.

[15] Lillian Corbin, Paula Baron and Judy Gutman, ‘ADR Zealots, Adjudicative Romantics and Everything in Between: Lawyers in Mediations’ (2015) 38(2) UNSW Law Journal 492; Samantha Hardy and Olivia Rundle, Mediation for Lawyers (2010, CCH); Julie Macfarlane, The New Lawyer: How Settlement is Transforming the Practice of Law (2008, UBC Press).

[16] Olivia Rundle, ‘Lawyers’ perspectives on “what is court-connected mediation for?”’ (2013) 20(1) International Journal of the Legal Profession 33.

[17] Olivia Rundle, ‘Lawyers’ Preparation for Court-Connected Mediation: The Supreme Court of Tasmania’ (2013) 32(1) UTLR 20; Olivia Rundle, ‘Barking Dogs: Lawyer Attitudes Towards Direct Disputant Participation in Court-Connected Mediation of General Civil Cases’ (2009) 8(1) QUTLJJ 77.

[18] Becky Batagol, ‘Fomentors of Strife, Gladiatorial Champions or Something Else Entirely? Lawyers and Family Dispute Resolution’ (2008) 8(1) QUTLJJ 24; Boulle and Field, above note 4.

[19] Bobette Wolski, ‘On mediation, legal representatives and advocates’ (2015) 38(1) UNSW Law Journal 5.

[20] Leonard L Riskin and Nancy A Welsh, ‘Is That All There Is?:The Problem in Court-Oriented Mediation’ (2008) 15 Geo Mason L Rev 863.

[21] Corbin et al, above note 15; Kathy Douglas, ‘The teaching of ADR in Australian law schools: Promoting non-adversarial practice in law’ (2011) 22(1) ADRJ 49; Macfarlane, above note 15.

By Alice Cooney

In 2000, when I was in high school, my grandmother made the announcement that she was beginning a law degree.  Although she had completed tertiary study later in life, my grandmother had left school at 14 to support her family during the Depression.  Believing in the ethos that you “learn something new every day”, my grandmother made that belief a bit more structured by enrolling in a Bachelor of Laws.

At the time, Facebook did not yet exist, MySpace hadn’t been created and the era of iPhones was another seven years away.  I distinctly remember asking my grandma if she was enjoying her study, and she complained that the course had a requirement that she complete an entire subject wholly online.  For someone who had grown up without computers, you could forgive her for feeling completely out of place in the online world.  Her computer was very good for a game of space invaders, and I can still hear the high pitched whir of the dial up modem logging in, but compared to what I use for my study now, I couldn’t imagine anything more archaic!

She was awarded her Bachelor degree at the age of 75 (due to some last minute recognition of her prior learning) and we had a pseudo graduation ceremony in her hospital room a week before she passed away from a brain tumour.  Now I often think that I would like to tell her about my experiences as a lawyer.  I want to tell her about my court cases, the challenges of self represented litigants and how her recommendation for me to study Latin as a teenager may not have been as ludicrous as I thought!  As I have been working through my Masters of Law, I have been thinking a lot about how studying law has changed and how online dispute resolution (ODR) would not have been a reality for her.

Since completing my law degree, I have worked as a sessional tutor, while working full time, and slowly progressed through my Masters.  The access I have to further study (including being able to attend a class on my phone whilst in a taxi on my way home from the office) means that I can simultaneously fulfil life goals and don’t have to wait until I am 70.  It has also allowed me to experience a change in study, and an alteration in the teaching techniques of legal academics.

Photo: JeongGuHyeok, Creative Commons

As the legal world embraces more forms of alternative dispute resolution, the academic world has looked at options to expand access to education.  One difficulty that I see has been the culture of instantaneous access to information, academics and feedback.  Allowing students to log in and live stream lectures or listen to recorded material at their convenience has been a wonderful asset to the profession.  The study of law is not quick though, the concepts are difficult, fraught with exceptions. Trying to reinforce the importance of the postal acceptance rule in a world where most young people have never sent a letter poses new issues.   There is an unrealistic expectation of students that academics will be available at their whim because there is now direct access like never before.  This instantaneous contact is not a reality with most clients and certainly not the case with accessing the courts.

Developing a skill set in ADR is incredibly important for lawyers, and the majority of legal disputes can and should be settled using these techniques.  The costs alone warrant this but it doesn’t mean the skills and techniques necessary for traditional legal practice should be undervalued.

Having recently completed a few subjects using online platforms, including Online Dispute Resolution (a part of or distinct to alternative dispute resolution depending on who you ask!), I see some challenges.  I followed this up with Copyright X, a subject based on content from Harvard University where all the lectures are actually on YouTube.  As I had previously been an on-campus student for my undergraduate degree, I found it difficult to embrace the online space for learning, despite being connected to my iPhone, iPad or computer at work (and socially!) no matter where I physically am.  I found that some of the classes were spent attempting to figure out how to recreate the classroom space in the digital world.

Just as ADR methods have had to depart from traditional legal processes, the learning space for studying these techniques will need to move away from trying to emulate what happens in a classroom.  Additional issues now seen in the online learning space include the internet dropping out, microphones not working, or unexpected visitors dropping in as experienced during the live interview of BBC correspondent Professor Robert E Kelly.

The issue of developing new ODR techniques, or teaching ADR concepts online, is that it can reinforce a disconnect with the reality of litigation if a proceeding is referred to a court or tribunal.  The delays in court dates and the continuing need to print copies of all materials in triplicate is broadening the divide between the much faster resolution offered by ADR and ODR processes.  Whilst speedy resolution is preferable, that cannot always be the case in law and students need to have well rounded experience to survive in this competitive profession.

In an accidental consequence of ‘keeping it all in the family’, my younger sister is now in her first year of law studies – she is already able to do better with alternative methods of study than I was.  I imagine that my sister, grandmother and I could have had some great legal debates over FaceTime or Skype, particularly about the merits of ADR using online platforms.   If the use of new study methods can change so rapidly, I’m very hopeful that ODR will expand too, lessening the impact on the courts, tribunals and regulatory bodies that are waning under the pressure of the workload.

Alice Cooney is a government solicitor specialising in litigation and dispute resolution. Alice has worked as a university sessional tutor for many years and as a trainer in prosecution techniques.  Alice has particular academic interests in advocacy, sentencing and the use of alternative dispute resolution by government agencies.

By Dr Benjamin Hayward

The very attraction of alternative dispute resolution is that it takes place outside of the courts.  Because of this, ADR processes aren’t bound by the strict procedures that apply in litigation.  ADR options are more flexible options.  But how flexible is too flexible?  Where is the line drawn?  And when it comes to flexibility in ADR, is it possible to have too much of a good thing?

Photo: Roger McLassus, Creative Commons

This blog post is about international commercial arbitration (‘ICA’).  As far as ADR goes, arbitration is a relatively formal option.  In ICA, commercial parties choose to submit their dispute to one or more arbitrators, for determination according to law – and forego access to the courts.

That ICA is a preferred means for resolving cross-border commercial disputes has been consistently shown by empirical studies carried out at the School of International Arbitration.  Of ICA’s many advantages – including its procedural neutrality, confidentiality, and the international enforceability of arbitral awards – flexibility is quite important.

Parties can tailor an arbitration’s procedure to their own requirements.  They can choose where their arbitration is held.  They can choose the language to be used.  They can choose whether their arbitrators require any particular qualifications or expertise – and can even choose the arbitrators themselves.  They can also agree on how their arbitration will be conducted.

In addition, parties can choose the law that the arbitrators will apply in resolving their dispute.  For example, parties might include a choice of law clause in their contract, alongside their arbitration agreement.  Most parties do – around 83%, according to data from the International Chamber of Commerce (‘ICC’).  Where they don’t, the task falls to the arbitrators.  Even if the parties don’t choose a governing law, arbitrators must still apply the law.  Here, the virtues of flexibility become a little more difficult to accept.

Arbitrators’ powers to identify the governing law are set out in the laws and rules governing the arbitration itself.  Typically, arbitrators are granted very wide discretion.

In research that I conducted for Conflict of Laws and Arbitral Discretion, I reviewed over 130 (current and superseded) arbitration laws and sets of arbitral rules.  The most common approach – appearing 60 times – grants arbitrators the power to simply apply whatever law they feel is ‘appropriate’ or ‘applicable’.  A good example is seen in the ICC Arbitration Rules, now in their 2017 edition (emphasis added):

Article 21: Applicable Rules of Law

(1)  The parties shall be free to agree upon the rules of law to be applied by the arbitral tribunal to the merits of the dispute.  In the absence of any such agreement, the arbitral tribunal shall apply the rules of law which it determines to be appropriate.

My research critiques the desirability of granting arbitrators these wide (and effectively unreviewable) discretions to identify the governing law.  While flexibility is undoubtedly a key advantage of arbitration, this kind of flexibility carries too far – flexibility in choosing between different laws, that may lead to different outcomes, effectively becomes flexibility in the end result.[1]

Without any kind of criteria required for the exercise of these discretions, how can they be justified when the outcome of the case is at stake?  For example, an arbitration may be initiated after three years, the statute of limitations in the claimant’s country might allow for four years, but the respondent’s country might only allow for two – selecting between these laws will determine if the claim can proceed, or whether it can’t even be argued at all.

This particular kind of flexibility may not be consistent with the interests of companies that are the ultimate users of ICA.  They may choose arbitration, as an ADR process, specifically because they want enhanced certainty regarding their substantive legal rights.[2]

Flexibility is a good thing in ADR, and it is a good thing in arbitration.  However, like all good things, it has its limits.  In Conflict of Laws and Arbitral Discretion, I argue that arbitrators should instead be required to apply a more specific rule to identify the governing law.

Though limiting flexibility, this may actually support the interests of arbitration’s users – improving their ability to foresee the law that they are ultimately bound by.  Uncertainty over the identity of that law leads to uncertainty over the parties’ rights and obligations.  Parties need to know how to perform their contracts; they need to know how to conduct their cases in an arbitration; and they need to be able to make sensible decisions about settlement.

All of these objectives would be furthered by taking just a little bit of flexibility out of arbitration.  When it comes to flexibility, and its impact upon the legal rights and obligations of parties, there might just be too much of a good thing.

[1] Simon Greenberg, ‘The Law Applicable to the Merits in International Arbitration’ (2004) 8 Vindobona Journal of International Commercial Law and Arbitration 315, 335.

[2] Gary Born, International Commercial Arbitration (Kluwer, 2^nd ed, 2014) 2616.

About Dr Benjamin Hayward

Dr Benjamin Hayward is a Senior Lecturer in the Department of Business Law and Taxation, at the Monash Business School, Monash University.  His research interests span international commercial arbitration, the international sale of goods, private international law, and Australian contract, commercial, sales, and consumer law.  Dr Hayward has a particular interest in how the applicable law is identified in international commercial arbitration, and the implications of this for arbitration as a dispute resolution mechanism.  He is the author of Conflict of Laws and Arbitral Discretion – The Closest Connection Test (Oxford University Press, 2017)

The special edition of the Bond Law Review brings you a selection of scholarly papers presented at the bi-annual National Mediation Conference held in September 2016 at the Gold Coast, Queensland. It’s available online and at no cost at: http://epublications.bond.edu.au/blr/.

Presentations at the Conference included discussion of the latest research and developments across the spectrum of forms of dispute resolution. The content of the conference, and of this special edition, is of interest to mediators, dispute resolution and restorative justice practitioners, facilitators, conciliators, educators, trainers, conflict coaches, arbitrators, adjudicators, academics, researchers, managers, administrators and anyone else who is interested in and involved in helping people in dispute

The 2016 conference brought together more than 500 participants and many delegates from across Australasia and the world. The theme for the conference was: “Thought, Innovation and Creativity: The Next Decade”. Key focuses included what practitioners know and how they know it; thinking about thinking; reflecting on how innovation, education and training of practitioners occurs in self-determinative through to determinative processes; and considering how flexibility and creativity can be observed in response to the diverse needs of clients in order to provide a future of best practice in managing conflict. In contemporary times, it is vital that practitioners consider standards, professionalism, ethical practice and self-care in order to continue to meet the challenge of their working environment. Mindfulness and reflective practice were prominent considerations – the importance of remaining mindful of and reflecting on our own reactions and the reactions of the participants within the dynamics of their communication about their dispute was highlighted, particularly in terms of minimising potential complaints, as well as in relation to avoiding practitioner burn out.

The workshops and presentations discussed many diverse ways for managing a range of processes contributing to a variety of outcomes, such as, settlement, resolution, healing, forgiveness, rebuilding relationships, renewing relationships or respectfully severing a relationship. Matters at the forefront of participants’ concerns included how to demonstrate creative techniques and innovative practice approaches by thinking ‘outside the square’, together with ethical guidelines and best practice standards in diverse practice applications.

The special edition begins with Jonathan Crowe’s conference keynote address on ‘Mediation Ethics and the Challenge of Professionalisation’. Jon discusses the regulatory and practice models of mediation ethics in the context of their suitability to address the challenge of professionalisation. He argues in favour of the practice model, concluding that the mediation profession should aim to strike a balance between the two models, while generally emphasising practice over regulation. Next, Olivia Rundle addresses the important issue of ‘Including Trans and Gender Diverse, Intersex and/or Non-Heterosexual People in Mediation Service Delivery’. Olivia’s article argues that mediators should be informed about historical as well as current legal treatment of individuals, couples and families who are trans and gender diverse, intersex and/or non-heterosexual, and be alert to the dynamics of power that arise as a result of legal non-recognition of certain family relationships. The third article in the special edition is Judge Joe Harman’s piece entitled: ‘An Imperfect Protection: Attitudes of Family Dispute Resolution Practitioners to Confidentiality’. Judge Harman discusses the utility of the confidentiality and inadmissibility of oral and written communications in Family Dispute Resolution, highlighting the tension between the confidentiality of dispute resolution processes and the desire of Courts to have access to all available evidence. The article presents and analyses a 2014/15 survey of practising Family Dispute Resolution Practitioners from private, government and community based contexts regarding their attitudes to confidentiality and its importance in Family Dispute Resolution. The final article for the special edition is by Kathy Douglas and Jennifer Hurley entitled ‘The Potential of Procedural Justice in Mediation: A Study into Mediators Understandings’. Kathy and Jennifer discuss the theory of procedural justice as a way of explaining why disputants who experience validation and respect in a decision-making process are more likely to accept the outcome of a process even if they do not agree with the result.  They argue that the Australian legal system, and mediators, are not yet adequately recognising or harnessing the potential of procedural justice. They present a qualitative study exploring the practices of mediators conducted at the Victorian Civil and Administrative Tribunal, concluding that a majority of mediators endorse the theory of procedural justice.

The special edition also contains 2 practice notes (3 in the online version) and a book review. The first practice note by Meriel O’Sullivan considers ‘The Structural Causes of Workplace Conflict: Understanding the Implications for the Mediation of Workplace Disputes’. Meriel uses a case study of a grievance to explore theories on the sources and resolution of workplace conflict. The case study highlights what happens when there is a mismatch between the sources of conflict and the conflict resolution intervention, and how this can be addressed by broadening the range of interventions utilised in a workplace. The second practice note by Keryn Foley considers the always topical issue of co-mediation in her piece ‘To Co-Mediate or Not to Co-Mediate — That is the Question’. Keryn explores the practical benefits and challenges of co-mediation, offers a new way of defining co-mediation, argues that the method requires a specific skill set, and offers several practice tips. Keryn argues that preparation is key in successfully co-mediating, as is the practice of debriefing. The third practice note by Louisa Roughsey, Frank Watt and Berry Sontag and is entitled ‘Indigenous Mediation – Is That Different?’. It is only available in the online version of the journal due to its extensive pictorial content. The practice note discusses the history, practice and challenges of the Mornington Island mediation service. Finally, the special edition concludes with a book review by Linda Fisher and Frances De Biasi of Samantha Hardy, Olivia Rundle and Damien Riggs’ book: Sex, Gender, Sexuality and the Law: Social and Legal Issues Faced by Individuals, Couples and Families. The review praises the work as a valuable resource, providing insight and extending understanding in ways that have not been achieved elsewhere.

We trust that this impressive special edition, which is a new initiative for the Conference, and has been generously supported by the Bond Law Review, brings together a collection of papers on a range of topics that will inspire you.

Special editors –  Professor Rachael Field, Bond University, Ms Mieke Brandon Co- Convenor and Co- Secretary National Mediation Conference 2016, and Associate Professor Pauline Collins, University of Southern Qld and Co- Secretary National Mediation Conference 2016.

I have just started an empirical project on the use of ADR in resolving discrimination claims, which I mentioned in an earlier post on this blog, and the process of completing the research has reminded me of some of the challenges of conducting empirical research, particularly when the focus of the study is conciliation. In this post, I reflect on these challenges for researchers.

First it’s necessary to explain the context and use of ADR in resolving discrimination complaints in Australia. A person who has experienced discrimination is required to lodge their claim at either the Australian Human Rights Commission or their local equal opportunity agency before they can proceed to court (except in Victoria where this has been optional since 2011). The agency will assess the complaint and if it has substance and falls within its jurisdiction, it will attempt to resolve the complaint using conciliation facilitated by staff conciliators. Most are settled and both the process and outcome are confidential. Those that don’t settle are either withdrawn or proceed to hearing where they may undergo mediation as part of the court’s case management processes.

Conciliation plays a central role in addressing discrimination complaints in Australia yet very little is known about it. Since Margaret Thornton conducted the earliest empirical study of conciliation in 1989,[1] researchers have found it very difficult to get access to information about the conciliation processes. This is because most legislation requires the process to be confidential so that if the matter doesn’t settle, the parties can’t use what was said during conciliation in court proceedings.

If the matter does settle, though, the settlement agreement usually contains a confidentiality clause which can be worded broadly enough to prevent the parties from discussing the claim and the settlement outcome. This makes it next to impossible to interview parties about their experience of the conciliation process and its effectiveness, and it means information is not available, certainly not publicly, about what exactly the claims are settling for. Researchers can interview parties who proceed to court (if the researcher can get access to them) but their view of the process will be quite different from the people who settled their claim.

Photo: Paul McIllroy, Creative Commons

The most common method researchers have used to explore ADR in this area is to interview staff conciliators at equal opportunity institutions and lawyers. However, sourcing interview participants can present its own challenges. There is often not a big pool to draw from – the agencies usually have only a handful of staff conciliators, depending on the size of the State or Territory, who may then suffer from ‘research fatigue’ if they are always called upon. Some may not have enough experience in conducting conciliations. It can be difficult to identify lawyers with enough experience to comment on the process – lawyers don’t usually focus on discrimination law; it’s one part of a large practice area, usually employment law and even those on it may also be small. Barristers may not have any experience of the conciliation process because they will be briefed later.

In saying that, I think that there are many benefits of conducting empirical research on ADR. For one thing, it is a very interesting type of research to undertake. As a legal academic who is used to spending time in a library or at her computer reading legislation, cases and work by other academics, it is often a welcome relief to leave the office and speak to people!

Too often we can get caught up in the theory of law and how it should be operating, whereas empirical research reveals law ‘in action’ and shows its strengths and shortcomings. I have found this to be particularly important in this field where there are very few cases each year; the development of the law is taking place behind the conciliation doors. Empirical research is the only way of filling this gap in knowledge.

[1] Margaret Thornton, ‘Equivocations of Conciliation: The Resolution of Discrimination Complaints in Australia’ (1989) 52 The Modern Law Review 733.

This post draws upon a paper I presented with Dr Alysia Blackham at the Labour Law Research Network’s Conference at the University of Toronto, 25-27 June, 2017.

This post from In The Black on workplace conflict features and interview with our Dr Sam Hardy.

“When conflict escalates to a point where parties are not communicating with each other, and worse – when they start talking very negatively to colleagues and friends about the other person, the situation becomes unproductive for the people in conflict and those around them,” says Samantha Hardy, principal at Conflict Coaching International and an expert on conflict management and resolution.

Read more in the 1 August piece.

I have recently started a research project about Victoria’s anti-discrimination laws that will evaluate, amongst other things, the state’s model of optional ADR. This model has been operating since 2011 and is unique in the country. I thought this would be a good opportunity to reflect on how ADR is used in anti-discrimination law and some of the problems that have arisen from its prevalence.

A person who has experienced discrimination is required to lodge their claim at either the Australian Human Rights Commission or their local equal opportunity agency before they can proceed to court (except in Victoria but many complainants still approach the agency first anyway). The agency will assess the complaint and if it has substance and falls within its jurisdiction, it will attempt to resolve the complaint using conciliation facilitated by staff conciliators. My earlier research showed that the vast majority of discrimination claims are settled or withdraw prior to hearing; the courts hear very few discrimination claims each year.[1]

There are many reasons for the prevalence of ADR in this jurisdiction. One of the most attractive features of ADR is that it is less intimidating than a court proceeding, which demands, amongst other formalities, technical hearing and evidentiary procedures. ADR is well suited to people who would not pursue a claim if they had to participate in a public hearing. This is particularly important in anti-discrimination law because so many complainants are vulnerable or from marginalised communities. Court hearings are also costly whereas conciliation is provided by a statutory agency so it is cost-free unless parties choose to retain legal representation. ADR is quicker and more expeditious than litigation. Often the agencies are required to process complaints within a set timeframe. For example, one of the Australian Human Rights Commission’s performance targets is to finalise 80% of complaints within 12 months of receipt. In 2015-16 it exceeded this and finalized 98% within 12 months.[2] By contrast, litigation can take years to resolve. ADR is confidential so the parties can negotiate freely, knowing that what is said cannot be used subsequently if the matter goes to court. Finally, ADR is more flexible than litigation. The parties control the outcome, rather having an outcome imposed by a judge. There are no restrictions on the settlement the parties can agree to. Theoretically, the parties determine the terms of settlement.

There are, however, problems with using ADR to resolve discrimination claims. The first is also a problem in other areas of law – the power imbalance between the parties. The concern is that the ADR process may reinforce this to the complainant’s detriment. The Conciliator is expected to address any power imbalances but this may not always be possible, particularly if there are lawyers involved and they engage in aggressive, adversarial behaviour and argue about the merits of the claim, rather than allowing the parties to negotiate an appropriate resolution.

Second, there is no guarantee that ADR protects the public’s interest in eliminating discrimination or that it protects the complainant’s rights and interests. This is most problematic if ADR is used purely as a case management technique, and it often has the purpose when it is managed by a court – the goal is to avoid a hearing.

Finally, while confidentiality is a benefit of ADR, it is a significant limitation in two respects. Most settlement agreements contain a confidentiality clause which prevents the parties from discussing the claim but which many agencies interpret as preventing them from releasing information about the nature of the discrimination complaints they receive and how they are being resolved, even in a de-identified form. This has led to a significant gap in the information that is available about the ADR process and the outcomes negotiated, including for research purposes. This makes it difficult for potential complainants to ascertain how best to resolve their claim and it means courts are not aware of the creative ways in which discrimination could be addressed. The other problem with confidentiality is that masks the extent to which discrimination remains a problem in society and denies the law the opportunity to play an educative role. It then becomes easy for the community to think that discrimination is no longer a problem because it is all hidden.

In 2011, Victoria became the only Australian jurisdiction where it is optional for complainants to lodge their claim at the agency and undertake conciliation. Many complainants are still choosing this path, which shows the value of ADR in this area of law. I am certainly not suggesting abandoning ADR; for many complainants, participating in ADR, having what one lawyer I interviewed described as a “cathartic experience” can be more significant than the actual outcome obtained at settlement. Its limitations must be borne in mind and it is worth considering how to retain the benefits of ADR while mitigating its shortcomings.

[1] Dominique Allen, ‘Behind the Conciliation Doors Settling Discrimination Complaints in Victoria’ (2009) 18(3) Griffith Law Review 778.

[2] Australian Human Rights Commission, Annual Report 2015-2016, 27.

As the GPC Series 2016-17 draws to a close,  it is time to take stock and consider how both the data analysis and conversations from each event might inform the future of Dispute Resolution.

As an academic, I am wary to avoid drawing conclusions before the final analysis is complete; but as contributor to the series from design to data analysis , I would like to share some of the themes I see emerging from this ambitious project.

Emerging themes:

1. The move from ADR to DR
2. Consideration of the sophistication of parties may prove crucial
3. Education is key
4. Lawyers see things differently from other stakeholders, including parties.

1.The move from ADR to DR

When we started the project, there was contention among committee members about the definition of different dispute resolution processes. In particular, the definition of ‘ADR’. Is it alternative DR, appropriate DR..?

As the project gained momentum, conversations moved from the idea of there being two distinct poles of DR. At one end, the adjudicative processes (such as litigation and arbitration) where the process and outcome are determined for the parties, and at the other end, the non-adjudicative processes (such as mediation), where parties have the opportunity to be decision-makers.

From these conversations, two things became clear. First, many stakeholders were starting to see the benefits of hybrid processes such as med-arb. Secondly, there was a realisation that dispute-savvy parties desire tailored processes that require DR practitioners to be familiar with a range of skills across the DR process continuum.

As such, we are now in a world where we no longer have a strict delineation between adversarial processes and non-adversarial processes. Now, all processes can co-habit within the DR landscape.

GPC Executive Committee

Danielle Hutchinson facilitates discussion questions

Brains trust, including visionary Michael Leathes, Alex Oddy and Professor Barney Jordaan

Emma-May Litchfield collecting feedback from the experts in the room

Facilitating the London Pilot, February 2016

2. Consideration of the sophistication of parties may prove crucial

The GPC Series invited participants to pay attention to the parties’ perceptions. As a result, we now have evidence (see pp 48-50) that parties who are unfamiliar with DR processes have different wants, needs and expectations from dispute-savvy clients.

The GPC has revealed that the ‘experienced user’ and the ‘sophisticated user’ may not always be the same. Parties who are familiar with a single DR process may not be dispute-savvy, as they will view a dispute through a limited lens. A dispute-savvy client will be able to look at each dispute individually, and may anticipate a tailored solution that draws on  a variety of DR skill-sets.

As a consequence, if practitioners want to satisfy the wants, needs and expectations of their clients, they must consider the sophistication of the parties participating in DR processes.

Emma-May Litchfield and Danielle Hutchinson facilitating data collection at GPC Singapore

Executive Committee members: Emma-May Litchfield and Nadja Alexander

Panel discussion GPC Singapore

Resolution Resources and HSF at GPC Singapore

Facilitating the collection of the data at the inaugural conference GPC Singapore, March 2016

3.Education is key

This is not a new concept in the DR space. What has been made clear from the conversation is the importance of reviewing and reframing our educational focus.

This means education to facilitate change, rather than our current focus of building a heightened awareness about DR. Without careful thought,  DR professionals and academics may miss the opportunity to keep pace with the rapidly changing business world, which routinely incorporates pre-escalation and/or de-escalation systems into business models and dispute clauses into contracts.

Practical and skills-based training and education for both the legal and business communities will be the way of the future for those who do not wish to be left behind.

Local Responses Q4.2

Dr Rachael Field, part of the panel facilitated by Steve Lancken, GPC Sydney

Session 4 Wordcloud- Vision for the Future

Dr Rosemary Howell, part of the panel at GPC Sydney

Participating as a delegate at GPC Sydney, May 2017

4.Lawyers see things differently from other stakeholders, including parties.

Unsurprisingly, the cumulative results of the GPC quantitative data supports the idea that lawyers play an important role in DR. It is both a strength and a weakness. At many events lawyers were seen as having the most influence in bringing about change, but they were also seen as the most resistant to it.

As our colleague Dr Olivia Rundle has identified, there is ‘a spectrum of contributions that lawyers can make‘ in DR. Combine this with the idea that clients at different levels of sophistication want different things from their lawyers (see pp 66-69), and it becomes abundantly clear that, to move with the times, some lawyers may need to adopt a more flexible mindset, with room for both adversarial and non-adversarial strategies.

Lawyers who understand these challenges and adapt to them have the opportunity to play an integral role in the future of DR. Without this, they will be left behind.

The beautiful Guildhall in London, July 2017

Local Organising Committee and Local Organising Committee representatives: Michael McIlwrath, Alex Oddy, Emma-May Litchfield and Andy Rogers

Final Panel session at GPC London: Where to now?

Three generations of Australian DR academics: Danielle Hutchinson, Katelyn Hutchinson, Emma-May Litchfield and Dr Rosemary Howell

Celebrating how far we have come at the final GPC London, July 2017 

When considering the themes discussed in this blogpost, it is important to remember that the GPC Series 2016-17 collected data in relation to commercial dispute resolution. That said, there is feasibility for the insights gained from the project to prove fungible to other areas of DR. For example, family or community disputes.

I invite other academics to use the GPC to inform further research as we move from a series of Global Pound Conferences to a Global Pound Community.

The beautiful Guildhall in London, July 2017

On October 29, 2014, 150 of us, representing many stakeholder groups from more than 20 countries, attended an important convention held in London’s beautiful Guildhall. Called ‘Shaping the Future of International Dispute Resolution’ the convention was inspired by the energetic and far-sighted Michael Leathes and was organised by the International Mediation Institute (IMI), which he pioneered and several other bodies.

We were engaged by the individual voting and interactive technology used to extract and provide real-time data drawn from our input on a number of critical issues. The data that this convention generated suggested that significant gaps may exist between what disputants expect and need and what is currently provided by advisors, provider bodies, practitioners, educators and policy makers.

The outcome was the establishment of an international working committee with the task of planning a most ambitious venture – a series of conferences to be held across the globe known as the Global Pound Conference (GPC).

The goal of the series was to produce reliable data about how the different stakeholders saw the landscape by requiring participants to answer 4 core questions which, in summary, asked:

What do parties want, need and expect?

How is the market currently addressing these?

How can dispute resolution be improved? Overcoming obstacles and challenges.

What action should be considered and by whom?

Participants were also to be encouraged to work in groups to discuss and develop deeper responses to a series of discussion questions.

March 2016 saw the first conference, held in Singapore, and this was followed by a further 28 conferences spanning the globe and returning to the Guildhall for the London conference in July 2017.

Having had the good fortune to attend the 2014 convention and the GPC sessions in Singapore, Sydney (May 2017) and the finale in London, I have been reflecting on the experiences and the outcomes I found most significant.

Whilst the GPC has featured in this blog before (see  GPC Sydney and Roscoe Pound would be proud) it seems timely to provide a final reflection on two questions – what has the GPC series has given us and what may come next?  My list below is not exhaustive – I sense many of us are asking and answering the same 2 questions – it simply identifies what for me are the 4 most valuable take-aways:

The Global Conversation

The GPC series got us talking. We are not all saying the same thing and we continue to have significant differences in how we see things and what we want. However the dispute resolution community, and its differing components (identified in the data collection as advisors, provider bodies, practitioners, educators and policy makers) have moved out of their separate compartments and into a community of stakeholders.

The Singapore Report

The technologically advanced and real-time data collection supported the careful and thorough data analysis (undertaken by Emma-May Litchfield and Danielle Hutchinson of Resolution Resources) and an introduction to new data and concepts. See The Singapore Report. For the first time we were able to see the differences in expectation and experience between sophisticated users (with the report coining the concept of ‘dispute savvy’ users) and novices and to move from our anecdotal assumptions of the dispute resolution landscape to a picture based on reliable data. By the time we got to London 2017, panellists and participants, drawn from the largest law firms, and users drawn from major international corporations, were comfortable adopting the language of the report and describing themselves as sophisticated users.

We also had clear information that users are not a single group but a number of different groups ranging from the least to the most experienced who have very different needs and wants.

The hierarchies identified and developed for this report are a powerful tool for future analysis and have significant ongoing value.

Lessons for Lawyers

We now have cumulative data from the core questions of the 29 events. There are numerous differences from the various jurisdictions so the picture is not homogenous. However what struck me as the most significant consistency in the data comes in the answer to the question about the obstacles to overcoming deficiencies in current dispute resolution processes and practices. The overwhelmingly consistent answer was lawyers (including, surprisingly, even the responses from the group identifying as advisors.)

In London, the responses generated the following Word Cloud which provides a great visual of the message.

The repositioning of ADR

In Singapore, participants and panellists were talking about ADR. By the time we got to London, ‘alternative’ was gone and Dispute Resolution was the consistent descriptor. This symbolic joining of the stakeholders is a great achievement in itself.

The ‘what’s next?’ discussion

It is appropriate to talk about the London 2017 conference as the end of the beginning. The conversation did not end in London. The last session encouraged us to explore the ‘what’s next’ question and the first step seems to be reframing the GPC as the Global Pound Community. We continued our conversation as we left the conference for celebratory cocktails. There were interesting suggestions about revisiting other ideas from the presentation by Professor Frank E.A.Sander at the original 1976 Pound Conference including developing his ‘triage’ concept into a deeper investigation of what ‘guided choice’ might look like.

For all of us in the Dispute Resolution space this is a great outcome. As a participant I am extremely grateful for the experience.

Congratulations to:

• The far-sighted Michael Leathes for having the dream;
• The international organising committee for herding the cats internationally;
• The principal sponsor Herbert Smith Freehills for staying the course and making such a substantial commitment;
• Jeremy Lack, Global Coordinator, for his tenacity;
• Powervote for its innovative technology
• Danielle Hutchinson and Emma-May Litchfield for bringing to the dispute resolution field research methodologies which have proven so useful in the fields of education and social sciences