Australian Dispute Resolution Research Network members Lola Akin Ojelabi and Mary Anne Noone have coordinated and edited a special edition of Law in Context on the topic of Ethics in Alternative Dispute Resolution. The special edition was published in February 2017 and is now available for purchase either as a whole volume in book form or by subscribing to the Law in Context journal.

The special edition draws from papers presented at the ADR Ethics for Practitioners Symposium, conducted at Latrobe University in June 2015 and convened by Lola and Mary Anne. The Symposium and the Special Edition considered a wide range of factors relevant to the complex questions of ADR ethics.

The papers included in the special edition are:

Lola Akin Ojelabi and Mary Anne Noone “ADR Processes: Connections Between Purpose, Values, Ethics and Justice” – Drawing from empirical research, this paper begins to explore the relationship between process purpose, underlying values and ethical responsibilities that arise for a range of ADR practitioners working in different fields and the potential of those processes to promote substantive and procedural justice.

Ellen Waldman “Inequality in America and Spillover Effects on Mediation Practice: Disputing for the 1 Per Cent and the 99 Per Cent” –  The question for mediation scholars and practitioners is whether growing inequality is affecting the way in which society’s ‘haves’ and ‘have-nots’ access and experience mediation. At the low end of the socio-economic totem pole, government cuts in legal services – combined with mediation practitioners’ obsession with neutrality – potentiate uninformed decision-making by unrepresented parties. At the high end, models of practice catering to legal professionals’ preferences threaten to rob mediation of its transformative, therapeutic potential. This paper explores these troubling developments and queries whether growing social inequality should precipitate shifts in our thinking about mediation ethics and the way we educate the next generation of lawyers. 

Susan Douglas, “Ethics in Mediation: Centralising Relationships of Trust” – In this paper, the relationship of trust between mediator and parties is proposed as a suitable and defensible alternative ethical framework. It is argued that this relationship can be constructed according to principles associated with fiduciary and therapeutic relationships, in recognition of the distinctive socio-legal context of practice. It is argued that relationships of trust provide a convincing framework within which to consider issues of substantive fairness in mediation.

Bobette Wolski, “An Ethical Evaluation Process for Mediators: A Preliminary Exploration of Factors Which Impact Ethical Decision-Making” – When mediators are confronted with an ethical dilemma such that they must choose between two or more ‘right’ or ‘good’ but contradictory courses of action, they must take numerous case-specific factors into account in arriving at a decision that they can justify. This article identifies some of the factors which mediators might take into account in deciding what is the ‘ethically fitting’ course to be followed, including: the objectives and values given priority in mediation; the approaches or models of mediation chosen by a mediator; and the standards of conduct to which mediators are subject.

Rachael Field and Jon Crowe, “Playing the Language Game of Family Mediation: Implications for Mediator Ethics”

Judy Gutman and Jodie Grant, “Ethical Conundrums Facing Mediators: Comparing Processes, Identifying Challenges and Opportunities” – This article considers several ethical issues confronting mediators in family and civil disputes. We compare ethical frameworks, drawing on issues arising from mediation practice in two specific court-connected fora. Further, we make recommendations for changes to existing mediator training and to applicable standards and codes. 

Kathy Douglas and Rebecca Leshinsky, “Ethical Concerns for Owners Corporation Managers who Informally Mediate in Owners Corporation Disputes: The Need for a Community of Practice” – Conflicts in owners corporations are not uncommon and the owners corporation or strata managers may informally mediate disputes. This article will outline research into the experience of conflict in owners corporations from the perspective of strata managers and discuss mediator ethics in this context. Managers, as informal ‘insider’ mediators, may experience a number of ethical dilemmas, most notably the issue of impartiality/ neutrality. They are part of a growing group of mediators that operate outside of the National Mediation Accreditation System. The article suggests the need for a community of practice of managers who informally mediate so that ethical concerns in their specific context can be shared and debated.

Alikki Vernon, “The Ethics of Appropriate Justice Approaches: Lessons From a Restorative Response to Institutional Abuse” – There have recently been several major initiatives in Australia in response to institutional abuse and sexual offending. This paper explores one of these initiatives: the Defence Abuse Response Taskforce. The Taskforce was established to address institutional abuse and sexual offending in the Australian Defence Force. It raised a number of important ethical questions and offers valuable lessons about appropriate justice approaches in complex matters.

Our humble-brag about this special edition is that almost all of the authors are members of our network. Congratulations to all involved in this research project, which makes a significant contribution to a thorny area of dispute resolution theory and practice.

One of the goals of the Australian Dispute Resolution Research Network is to create an environment where researchers can support one another in a rigorous and kind manner to engage in high quality scholarship. I am so excited that Jon and Rachael accepted my invitation to write this piece. Both of them are established professors with an excellent track record of scholarship both within and outside the dispute resolution subject area. Their story of taking their idea through three double blind peer review processes plus an ADRRN Roundtable to eventual publication demonstrates their resilience and confidence that their idea was a good one worth pursuing. Researchers need to foster an ability to accept peer review feedback graciously, consider it an opportunity, decide how to respond, and persist with work that has been criticised. Jon and Rachael’s story is a model for all of us and I thank them again for sharing it here. Olivia.

Jonathan Crowe and Rachael Field

The path from idea to publication is often winding and tortuous. One example of this is our recent article, ‘Playing the Language Game of Family Mediation: Implications for Mediator Ethics’, which appears in a special issue of Law in Context on ethics and dispute resolution. The article explores some underlying ethical issues about access to justice in family mediation.

What, then, was the article’s path to publication?  We first started work on the paper in late 2008. We completed the initial version in May 2009 and submitted it to the Australian Journal of Family Law. The referees made a number of critical suggestions and we were asked to revise and resubmit.

Often it is hard to work out how to respond to referees’ comments, particularly when different referees seem to recommend different things. One of our referees commented: ‘The article needs complete rethinking and rewriting.’ The other said: ‘This article contains some interesting ideas. It is well written and original.’

The process of revision can be difficult and daunting. How do you mediate between diverse views and reconcile the referees’ comments and criticisms? Anyway, who has the time for this sort of thing? Other commitments—and life in general—tend to get in the way.

Nonetheless, we worked on revising the article, doing our best to respond. It did take a while, though!  It wasn’t until July 2010 that it was in shape to be resubmitted. Rather than resubmit to the Australian Journal of Family Law, we thought the new version would be well suited for a special domestic violence edition of the University of New South Wales Law Journal.

Again, however, the referees were split on the article’s merits. One reviewer said: ‘This is a well written and appropriately researched paper and raises some interesting ideas.’ The other said: ‘The article arouses two basic reactions: appreciation and disappointment. … The article needs serious and substantial revisions.’  Back to the drawing board!

After several years of neglect, procrastination and intermittent revision, we presented the paper at the Australian Dispute Resolution Research Network Roundtable in 2015. Our colleagues at the ADR Research Network reassured us of the paper’s value and made supportive suggestions for further improvement.

We are particularly grateful to Olivia Rundle for her generous and helpful commentary. This is why the Network is so amazing. Such levels of sincere and generous collegiality are unfortunately all too rare in the contemporary academy.

Re-energised by the support of our colleagues, we revised the piece again and resubmitted it to a special ethics edition of Law in Context in 2016. This time, it found favour with the referees. After a final round of revisions, it was accepted and is now in print.

What is the moral of this long-winded story? It certainly shows the value of tenacity and persistence in academic publishing. Being rejected and receiving referees’ (sometimes harsh) criticisms can be disheartening and emotionally draining. Resilience, patience and perseverance are key.

It’s also important to back yourself and believe in your ideas and their merit. Some ideas take longer than others to mature. Sticking with the idea until it does get to that point pays off. It also really helps to be working with a supportive co-author (as we each were) and to have generous and encouraging colleagues like those in the ADR Research Network.

Overall, then, the article took about eight years from conception to publication. It took a long time, but we got there in the end! So what were the ideas we sought to express in this article? Here is a short summary.

Over the last 20 to 30 years, the use of family mediation in Australia to resolve family disputes has grown significantly. Since the 2006 reforms to the Family Law Act 1975 (Cth), family dispute resolution (as family mediation is now known) has effectively become a compulsory first step in post-separation parenting disputes that enter the family law system.

There are many good reasons for encouraging parties to participate in family mediation. Mediation is a flexible, cost-effective, time-efficient and less adversarial way for families to manage and resolve post-separation disputes. Family mediation is also a process that can enable party self-determination, empowering the parties to determine together the best arrangements for their family into the future.

However, we argue that vigilance is required if the capacity of each party to negotiate towards a mutually agreeable outcome is to be effectively sustained and the full potential benefits of mediation are truly to be achieved. This is because the relatively informal nature of mediation, along with its emphasis on party self-determination and mediator impartiality, holds the potential to mask the challenges the process presents for inexperienced or vulnerable parties.

In the article, we use Ludwig Wittgenstein’s concept of a language game and the related notion of a clash of genres to explore some of the underlying conventions and expectations that create challenges for the parties in family mediation. We then consider how mediators might respond to these challenges and the implications this holds for mediator ethics.

In our view, mediators must play an ethically active role in preparing and supporting the parties to operate effectively within the mediation language game. This requires a more sophisticated understanding of party self-determination that goes beyond the simplistic rhetoric that the parties control the content and outcome of the dispute.

Since we first met at a post-graduate law research colloquium in Adelaide in 2004 (where Jon’s paper won best paper and we sat next to each other at the dinner) we have enjoyed bringing our diverse perspectives and knowledge together. We’ve pretty much always had ideas we were developing or articles we were writing together since that time.

Coffee catch ups have always been fun. We really like the body of scholarship we are developing! See, for example:

• Jonathan Crowe and Rachael Field, ‘U v U (2002) 211 CLR 238: Judgment and Commentary’ in H Douglas, F Bartlett, T Luker and R Hunter (eds), Australian Feminist Judgments: Righting and Rewriting Law (Hart Publishing, 2014).
• Jonathan Crowe and Rachael Field, ‘The Problem of Legitimacy in Mediation’ (2008) 9(1) Contemporary Issues in Law 48
• Rachael Field and Jonathan Crowe, ‘The Construction of Rationality in Australian Family Dispute Resolution: A Feminist Analysis’ (2007) 27 Australian Feminist Law Journal 97
• And of course we can’t forget: Rachael Field and Jonathan Crowe, ‘Playing the Language Game of Family Mediation: Implications for Mediator Ethics’ (2017) 35 Law in Context 84

After this blog post, our next adventure is a book on Mediation Ethics for Edward Elgar. Wish us luck! Hopefully, it doesn’t take eight years!

On Monday of this week some workers in some Australian states and territories enjoyed a public holiday called “Labour Day” or the “8 Hour Day”. This public holiday celebrates the establishment of a baseline expectation that the ordinary working week for full time wage earners in Australia is 40 hours (reduced to 38 hours in 1981). An irony of the celebratory public holiday is that a high proportion of Australian full time workers work significantly more hours per week (and many are not paid overtime, meaning that those additional hours are essentially voluntary contributions to their employer/business and/or significantly reduce their actual hourly earnings). Some research suggests that working greater than 39 hours per week is a health risk. In high salary sectors, critics have started to challenge the cult of over-work, reward for long work hours and addiction to busy-ness.

This post focuses upon the processes that were engaged to achieve the legal milestone, considered to be so significant that most Australian states and territories celebrate it as a public holiday each year. The remainder of this post does not focus upon distinctions between theory and practice in working hours, nor the manner in which industrial relations law has been implemented post 1947.

Australia’s historic commitment to conciliation and arbitration

The Australian Constitution, dated 1901, granted the following legislative power to the Commonwealth of Australia:

conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State (Section 51 (xxxv))

The driver for this power being included in the Constitution was a history of workers’ strikes and industrial unrest, particularly in the 1890s. It was hoped that the Commonwealth would be able to provide an effective way of minimising the disruption and facilitating the resolution of industrial disputes. The Commonwealth first exercised this power in 1904 when it established the Commonwealth Court of Conciliation and Arbitration. Section 2 of the enabling Act of Parliament listed the Court’s chief objects, some of which enshrined dispute resolution principles into law (author’s emphasis):

…(III) To provide for the exercise of the jurisdiction of the Court by conciliation with a view to amicable agreement between the parties;

(IV) In default of amicable agreement between the parties, to provide for the exercise of jurisdiction of the Court by equitable award;

…(VII) To provide for the making and enforcement of industrial agreements between employers and employees in relation to industrial disputes.

It is clear from these objects that the intention was to provide a system that supported amicable agreement between employers and workers, and that conciliation was intended to be the primary means of resolving disputes, with recourse to arbitration occurring where they had been unable to reach agreement. This is further emphasised by section 16:

The President shall be charged with the duty of endeavouring at all times by all lawful ways and means to reconcile the parties to industrial disputes, and to prevent and settle industrial disputes, whether or not the Court has cognizance of them, in all cases in which it appears to him that his mediation is desirable in the public interest.

Although a Commonwealth institution, provision was made in the objects for the Court of Conciliation and Arbitration to take a collaborative and coordinating approach, dealing with matters referred by states and working with state industrial authorities:

(V) To enable States to refer industrial disputes to the Court, and to permit the working of the Court and of State Industrial Authorities in aid of each other.

One of the chief objects of the Act enabled the Court to allow a variety of interested parties to participate in its proceedings:

(VI) To facilitate and encourage the organization of representative bodies of employers and of employees and the submission of industrial disputes to the Court by organizations, and to permit representative bodies of employers and of employees to be declared organizations for the purposes of this Act.

This effectively enabled the Court to invite the participation of organisations that would not necessarily have legal standing (and would rarely be proactively invited to participate) in other contexts.

Fairfax Corporation. 1935, Judge’s associate Miss Mary Drake Brockman seated at a desk at the Federal Arbitration Court, Sydney, 12 February 1935, 1 , viewed 17 March 2017 http://nla.gov.au/nla.obj-160959628

Standard Hours Inquiry 1947

In 1947 the Commonwealth Court of Conciliation and Arbitration approved the 40 hour week through its Standard Hours Inquiry decision. Initially, the matter came before the Court as a dispute between the NSW Printing Industry Employees Union and Printing and Allied Trades Employers Federation about the terms of the printing industry award – essentially about whether the standard hours of work should be reduced from 44 to 40 hours. This was a confined dispute and could have been dealt with as an isolated case. Indeed, technically, all that the Court had jurisdiction to do was to settle the specific disputes that came before it. Where a dispute is confined to a narrow set of parties, and there is a public interest in mediating their dispute, the matter would properly be referred to conciliation. It can be safely presumed that the Standard Hours case was always considered to be of such great public interest, that it would not be an appropriate matter to refer to a private decision making process such as conciliation. The case would not have had much effect on Australian standard working hours had it been settled privately between the NSW Printing Industry Employees Union and the Printing and Allied Trades Employers Federation.

The matter was dealt with through a public inquiry by the Arbitration arm of the Court of Conciliation and Arbitration. The Court began to hear the printing industry case in November 1945 with two parties represented: the Printing Industry Employees Union and the Printing and Allied Trades Employers Federation. In February 1946 the Attorney General for the Commonwealth and the Victorian Chamber of Manufacturers were allowed to join the proceedings. The Attorney-General argued that it wanted to intervene in the case on the basis of public interest in the standard hours in the printing industry. The Court adjourned proceedings for one month:

…to give an opportunity to unions which desired to do so, to raise the general question of a 40 hour week in industry, by lodging applications for variation of awards. (Judgment at p 583).

The Australian Council for Trade Unions and 37 individual unions made application to intervene. The question at this point became whether or not the Court ought to continue with the printing industry case or consider the question of standard hours of work in industry more generally. It was decided that the broader question should be explored, drawing all of the claims together within a single inquiry. The matter adjourned and intervenors were asked to file all necessary documents with the Court.

The inquiry was complex, resource intensive, and long (demonstrating that these case attributes are not necessarily a “new” problem faced by legal systems). Five judges originally presided over the hearings (until one died and another became ill for an extended period of time). The hearing lasted for many months through 1946 and 1947. There were some breaks while the Court dealt with other matters. Some counsel were appointed to the bench and were replaced during the trial. The Court noted that:

Over 22 months have elapsed since the commencement of the case in November, 1945. The Court has before it some 8,875 pages of transcript, has heard evidence from 225 witnesses and received almost 500 exhibits…The immensity of the mass of material placed before this Court in the 158 sitting days occupied by the hearing of this case makes a detailed examination of it all in our reasons for judgement out of the question, if indeed, it is not beyond human capacity (Judgment at p 586).

The Court noted that at the time of judgment the inquiry comprised 100 individual industrial disputes regarding the issue of standard working hours.

Observations about the role of the Court of Conciliation and Arbitration

Their Honours made some observations about the constitutional and jurisdictional limits of the Court on the one hand, and the actual influence that its determinations would have on the industrial landscape on the other:

It is a commonplace of Australian industrial law that the limit of the constitutional power of the Court is to settle each of these disputes within its ambit, and the ultimate judgment will in fact settle these particular disputes, and do no more. But we know, as a matter of practical fact, that it will in the long run lead to uniform standard hours throughout Australia. (Judgment at p 588).

The Court recognised that it would inevitably influence parliamentary reform to standardise workers’ rights. Their Honours also expressed a view that they ought not ignore the “popular will” when making their decision, as the effect of their decision’s impact upon the popular will could be either lowered productivity or increased worker effort (Judgment at p 588). In assessing the “popular will”, the Court was influenced by the fact that four states (NSW, Victoria, Queensland and Tasmania) and the Commonwealth had all intervened and advocated that the Court support the workers’ claims for a 40 hour working week in each of the relevant awards. Western Australia and South Australia had not advocated against the 40 hour week. The Court noted later that the governments who intervened were also some of the biggest employers in Australia (Judgment at p 591).

Broad considerations taken into account

One of the striking observations when reading the judgment is the way that the Court, in recognition of the significant and broad reaching consequences of its decision making in specific applications, took into account a range of broad contextual considerations. The inquiry took place post world war 2, and the fact that there were shortages of both commodities and labour was argued by the employers to be a reason not to stifle productivity levels in industry by granting the 40 hour work week claim. The Court acknowledged that there were many imponderable questions that came to mind when deciding the case:

…how shall we estimate the value of industrial contentment? How shall we measure the human value of it? How far is the shorter week a step on that road to co-operation of the forces of production which is so desirable? How shall we set the family aspects of this increased leisure against foreign trade or the claims of our people against those of other countries? Yet all these are factors which do enter into the fabric of one’s mind and ultimately issue forth in judgment. (Judgment at p 593).

Economic experts offered evidence about the forecast effect of a 40 hour week on national productivity, investment, and foreign trade, as well as the current economic situation in Australia and overseas (noting that the current year was anticipated to be a good one for agricultural production after some years of drought).

Another interesting observation that the Court made was its acknowledgment that a finding adverse to workers would not bring a stop to industrial action and unrest about their claim for a 40 hour working week:

No realist for a minute thinks that a rejection by the Court in these cases would bring about industrial harmony or would abate for an instant the demand for the shorter week. History has shown how persistent in the past have been such claims. There is no reason to suspect that the future will differ. (Judgment at p 590).

The judgment’s conclusion begins with an assertion that the Court was making a “major social judgment which will have very great and important consequences” (at p 610). The magnitude of that responsibility was clearly a weight on the minds of the members of the Court who conducted the inquiry and made the arbitral decisions in the individual disputes before it.

Dispute Resolution Perspective of the Standard Hours Inquiry 1947

The way that the Court of Conciliation and Arbitration conducted itself and delivered its reasoning in the Standard Hours Inquiry demonstrates adaptability, flexibility, and a broad view of what could have been treated as isolated disputes. Examples of adaptability, flexibility and breadth of view included:

• To allow government intervenors;
• Inviting unions not already involved in formal claims to make applications raising disputes and effectively expand the reach of the inquiry;
• Taking a broad systemic approach to the inquiry and decision making while acknowledging the confined limits about what orders could be made to resolve the disputes;
• Acknowledgement of the consequences the decisions would make beyond the immediate disputes;
• Explicit acknowledgement of some of the unanswerable questions that occurred to the decision makers during their deliberations;
• Explicit acknowledgement of the reality that the decision would not necessarily bring an end to the industrial unrest around the disputes.

The Court of Conciliation and Arbitration was a peculiar beast established for the purpose of supporting decision making in a complex area that crosses State and Commonwealth boundaries and affects the Australian community in fundamental and pervasive ways – economically and relationally, at macro and micro levels. The decision makers acknowledged the wider implications and effects of their decision and attempted to them into consideration. The capacity of the Court to make sure that its decisions were well informed by inviting greater participation assisted it to achieve its object of facilitating settlement of industrial disputes. The Standard Hours case is a classic example of a case that needed a well resourced, careful, broadly focused and public inquiry. The establishment of an arbitral process enabled that kind of inquiry to occur.

Macquarie University is seeking a PhD candidate to join an interdisciplinary research project in law and philosophy.

The project is concerned with procedural justice in the context of resolving legal disputes. Its overall aim is to develop a theory of procedural justice that builds on relational theory in philosophy by incorporating relational concerns in the moral evaluation of legal procedures.

The theory will be used to evaluate the procedural practices of a designated legal institution (the New South Wales Civil and Administrative Tribunal).  A case study will investigate the extent to which the theory explains, justifies or provides reasons for revising the procedural practices of the NCAT.

The PhD candidate will either work on the normative aspect or the institutional legal aspects of the project, depending on their qualifications and background.

More information can be found at http://www.mq.edu.au/research/phd-and-research-degrees/scholarships/scholarships-for-domestic-candidates (click on ‘Faculty of Arts’, then ‘Philosophy/Macquarie Law School’).

International Women’s Day is an opportunity to reflect upon what we know about gender equity issues in the dispute resolution field.

By Brian Allen, Voice of America – http://www.voanews.com/a/photo-gallery-women-march-worldwide/3686038.html, Public Domain, https://commons.wikimedia.org/w/index.php?curid=55207738

The gender factor in dispute resolution

Carrie Menkel-Meadow has long been interested in the question of the contributions that women make to the dispute resolution field. In 1985 she predicted that increased numbers of women lawyers would shape the profession in a more problem-solving, relational, contextual and caring direction. In 1998 Juliana Birkhoff argued that gender permeates conflict dynamics at the societal and individual level. In 2000 Leigh Goodmark wrote an article about the danger that dispute resolution processes posed for some women, citing an example of a woman survivor of family violence being disadvantaged in a mediation process that was controlled by her husband. Rachael Field wrote about process imbalances in Family Law Mediation that women should be aware of in 1998. Hopefully the extensive work that has been undertaken to make dispute resolution processes safe for people affected by family violence means that women are no longer at such a striking disadvantage. Tamara Relis’ 2009 work is an insightful investigation of the effect of gender in mediation, within the context of complexity of factors. In 2012 Menkel-Meadow noted that the question whether gender is a significant indicator of dispute resolution behaviour remains a live issue. She concluded from her summary of evidence that it’s difficult to unravel gender factors from other interpersonal dynamics and draw any certain conclusions.Nonetheless, gender is bound to play some part within dispute resolution processes, as it does in other human interactions.

Gender bias in dispute resolution

Women appear to be well represented in the dispute resolution profession and academy, which may reflect some gendered attraction to the interpersonal relational focus of dispute resolution theory and practice. This does not, however, mean that women are treated equitably in obtaining work or pay within the field.

There is some evidence of gender bias in selection of dispute resolution practitioner. For example, a study by Gina Brown and Andrea Schneider found that where selection of practitioner occurred through mediator provider lists, 47% of selections were women, compared to only 29% when selection relied upon networking. Women arbitrators were only selected 20% of the time by either manner of selection. Furthermore, women advocates selected women mediators 37% of the time, whereas male advocates selected women mediators only 16% of the time.

In 2013 Victoria Pynchon provocatively wrote a piece titled “Do I Look Fat In This Profession? Escaping Gender Bias in ADR.” Among other things, she discusses unconscious bias and Harvard’s Project Implicit, which is a tool to measure prejudices. Self-tests can equip us to adjust our own practices to overcome our own biases. The strong gender biases in arbitration were usefully discussed in the 2015 “Old, White and Male: Increasing Gender Diversity In Arbitration Panels.”

Agents for change

Diversity and inclusiveness of the dispute resolution profession will support better practice and benefit the field as a whole.

In 1997 NADRAC included a Chapter on addressing gender equity issues in alternative dispute resolution in its “Issues of Fairness and Justice In Alternative Dispute Resolution” Discussion Paper.

The Women in Dispute Resolution Committee of the American Bar Association aims to assess the status of women in dispute resolution professions and academia, as well as identifying barriers and promoting gender equity to increase women’s participation in the DR profession.

Perhaps there is scope for a contemporary Australian focus upon women in the dispute resolution field. There may be an opportunity to replicate some of the research that has been done elsewhere to gather data and identify issues. Perhaps professional organisations could partner with researchers to start such a project. Please comment here if you have data or research findings already to share.

In February each year, civil justice academics from Australia and New Zealand gather to discuss recent developments and current research on civil procedure and dispute resolution. This year’s event was hosted by Emeritus Professor David Bamford and Flinders Law School in Adelaide on 15 and 16 February.

Like the annual ADR Research Network Roundtable, the Civil Justice Forum provides a inclusive and supportive place to test and share ideas. It is great to see the increasing level of overlap between our civil justice, civil procedure and dispute resolution research communities. A growing number of researchers have attended both events in recent years, and we may be en route to becoming one big happy family. At the Forum, not even a skirmish that broke out at one point about whether ADR is appropriate or alternative – yes, some of us (you) are still having that debate – could dampen the collegial mood.

Pictured: Australian Civil Justice Royalty Emeritus Prof David Bamford (Flinders) and Prof Peta Spender (ANU) hold court

Presentations spanned such diverse topics as judicial theory and procedural reform (Dr Joe McIntyre, Uni SA), advance rulings in litigation (Miiko Kumar, Sydney), the gap between what we teach and the skills students need (Doris Bozin, Canberra), and teaching models in civil procedure and dispute resolution (Svetlana German, Notre Dame). Particular highlights included:

• Dr Tania Penovic (Monash) providing a valuable overview of the trajectory of access to justice reviews in recent decades and the Victorian Government’s recent Access to Justice Review Report (with its emphasis on the missing evidence base and the evolving meaning of access to justice)
• Dr Lily O’Neill (Melbourne) on her outstanding study of the negotiation of native title access agreements between traditional owners, resource companies and the state, highlighting the powerful influence of non-legal factors on outcomes, and
• Dr Bridgette Toy-Cronin (Otago) posing novel and important questions about the ineffectiveness of case quantum as a proxy for case complexity, and the need for more attention to matching civil cases to the most suitable court.

Based on my observation of the last five of these events, an increasing number of attendees are engaging in empirical legal research on civil justice. More please! This is a terrific development, and to be welcomed. A series of recent reports have identified the dearth of civil justice data and analysis as a key impediment to evidence-based reform. The most recently additions include the Victorian Access to Justice Review, and the Productivity Commission’s current inquiry on Data Availability and Use and its past work on Access to Justice Arrangements.

Academic conferences provide an important opportunity to share experiences on what works and what doesn’t in our research. At the Forum, Emeritus Prof David Bamford presented such a paper on the difficulties of investigating discovery practices in litigation. David’s work highlights the way the quality of administrative data resources and court staff buy-in can make or break this kind of research.

Pictured: Emeritus Prof David Bamford reassures us that data failures are not research failures

Happily, David also identified a common experience of empirical researchers – that even when research doesn’t progress as planned, it often still yields important results.

As if that wasn’t enough, we were treated to a lively discussion at the end of the conference when we were joined by Prof Carrie Menkel-Meadow (University of California, Irvine). Carrie shared her deep insights on the challenges of empirical research in this field. In particular, she provided us with a cautionary tale about the need to be aware of local legal culture when making comparisons between jurisdictions. These kinds of factors are often overlooked by non-lawyer research teams.

Pictured: Attendees look on (in rapture) as Prof Carrie Menkel-Meadow shares her insights

We also discussed the difficulties of getting access to data for civil justice research, and the impact the increasing privatisation of ADR and online dispute resolution services are likely to have on this state of affairs.

Thanks again to David and Flinders Law School for hosting the event. If you interested in joining next year’s forum, please make a note in your diary for mid-February 2018 and keep an eye on the ADR Research Network Blog for announcements.

Krakow: Picture courtesy UIA

The World Forum of Mediation Centres was created in 2001 by the Mediation and Conflict Prevention Council of the Union Internationale des Avocats.

It brings together commercial mediation practitioners and representatives of ADR Centres from around the world (including the Law Society of New South Wales) via an active program of collaboration with its constituents.

With my Australian colleagues, I was delighted to receive an invitation to present various sessions over the two days of the 23^rd Forum, which has just concluded in Krakow, Poland.

Jagiellonian University, located in the beautiful city of Krakow, was the perfect setting for the forum. The picturesque setting, with blankets of snow covering the landscape, made the sub-zero temperatures bearable!

My fellow pracademics, Emma-May Litchfield and Danielle Hutchinson, joined me in delivering an interactive session on The Power of the Narrative in Mediation. Our session reviewed the significant research into narrative structure and power found in such diverse fields as education, semiotics, neuroscience and economics and reflected on the limited contribution in the field of ADR.

Using a case study drawn from real life, participants investigated and debated what steps they would take as mediators to identify the narratives which had led the parties to a seemingly impossible impasse; then to consider how the parties could be encouraged to develop new narratives which might meet their interests and create opportunities for resolution.

Emma-May and Danielle then drew links between the case study and findings from The Singapore Report, the analysis of the inaugural Global Pound Conference (GPC) event last March. They explained the different narratives of inexperienced and ‘dispute-savvy’ disputants and the tools the GPC research offers to mediators as they build repertoire.

Alan Limbury, our other Australian representative, was his usual provocative self in his session on Arb-Med-Arb with the same neutral. Other panellists explained hybrid processes generally and what their future role might be. Furious debate, laced with scepticism and concerns about ethics and procedural fairness, kept us entertained and engaged. The jury is still out and we may need a mediator to sort out the panellists’ differences!

There were many other important topics including the benefits of teaching Greek healthcare practitioners how to apologise effectively for medical errors; what the future looks like for Online Dispute Resolution (ODR); and in-house programs to reduce staff conflict.

The Forum is a great opportunity to share international developments and initiatives and to collaborate with colleagues whose professional practices vary widely.

The social calendar was challenging too and included a tour of the famous Krakow salt mine, an UNESCO World Heritage site. Descending more than 300 steps to dine 110 metres below ground was a chilly but unforgettable experience.

The program and most of the papers are available at www.uianet.org along with news of the next forum in Singapore in October 2017.

Rachel Field’s recent post DR Praxis has had me reflecting on what has influenced how I approach negotiations and other DR processes as a lawyer.

The knowledge I have gained as a researcher significantly informs my approach to numerous aspects of my role, including DR processes.

But that knowledge has not just come from DR theory and my discussions with other DR practitioners and researchers.  It has also been significantly informed by other fields and disciplines.

The work by sociologists and socio-legal scholars on legal consciousness* has been a particular influence.  It seeks to explain the variable power of formal law in everyday life and how “legality” in everyday life is not necessarily determined by formal law. It can help us understand the role of formal law (if any) in how individuals interpret and respond to issues and problems, as well as the factors that may contribute to an individual turning to or away from formal law.

When it comes to DR processes, an understanding of legal consciousness can help us understand what participants require to effectively participate in the process and potentially how they respond in it.

Are there any theories or practices from other fields or disciplines that you intend to explore in your research or that will influence your practice in 2017?

* See, for example, Ewick P and Silbey S, “The Common Place of Law: Stories from Everyday Life” (1998, The University of Chicago Press); Silbey S, “After Legal Consciousness” (2005) Annu. Rev. Law Soc. Sci 323; Abrego LT, ‘Legal Consciousness of Undocumented Latinos: Fear and Stigmas as Barriers to Claims-Making for first- and 1.5-Generation Immigrants’ (2011) 45(2) Law & Society Review 337; and Halliday S, Kitzinger C and Kitzinger “Law in everyday life and death: a socio-legal study of chronic disorders of consciousness” (2015) 35(1) Legal Studies 55.