Show Me the Data! Report on the 2017 Civil Justice Research & Teaching Forum

Posted on 27/02/2017 by A/Prof Genevieve Grant

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.

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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.

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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.

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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.

There is a time and place for mediation but a bullying allegation in the workplace is not one

Posted on 20/02/2017 by Associate Professor Becky Batagol

By Carmelene Greco

This post is the final in a series of posts on this blog written by students studying Non-Adversarial Justice at the Faculty of Law at Monash University in 2016. Students were invited to write blog posts explaining various complex areas of law relating to dispute resolution to ordinary readers. The very best post on each topic is published here.

Photo Credit: Dick Vos

The practice of mediation to resolve workplace bullying allegations is controversial and largely debated amongst academics. Ironically, effective resolution of such disputes is extremely important in our jurisdiction, with Australia having substantially higher rates of workplace bullying when compared to our international counterparts. This “hidden problem” requires a specialist and careful response but mediation is not it, and it may in fact make the situation worse.

Workplace bullying is notoriously difficult to define and there is still no nationally uniform definition. It has been described as “repeated, unreasonable behaviour directed towards a worker or group of workers, that creates a risk to health and safety”. It involves an addiction to controlling others, harassment and verbal abuse and constant unjustified criticism. It is not, as accurately stated by the Fair Work Commission, “reasonable management action that’s carried out in a reasonable way”.

Mediation, which aims to be an empowering process, involves trained third parties intervening on a dispute to assist parties to make their own decisions. As stated by the National Alternative Dispute Resolution Advisory Council:

The mediator has no advisory or determinative role…but may advise on or determine the process of mediation…

Therefore, any solution is not imposed on parties but arises out of the empowerment of the parties to make it themselves.

It is important to stress that there is a lot of evidence of mediation providing an effective outcome in many cases where it helps facilitates solutions to problems that appear unsolvable. However, the key distinguishing features of mediation, which make it an attractive option in many instances, are the very reasons it is inappropriate for workplace bullying.

Comparing workplace bullying and family violence

The very nature of workplace bullying automatically suggests that mediation is an unsuited response. Workplace bullying is frequently compared to domestic violence – they are considered “almost identical twins”. In both scenarios there is an addiction to power, the controlling of another in a detrimental way and a severe power imbalance.

Mediation, and other forms of ADR, can be considered inappropriate in cases of family violence. This is exemplified by current Australian family law legislation that affords an exception to the mandate of alternative dispute resolution where there is the presence of family violence. This displays the recognition by the Australian Parliament of how a severe power imbalance can undermine the benefits of mediation.

Similarly, in the case of workplace bullying, a power imbalance and a potential ongoing relationship exists, as such the effectiveness of mediation is reduced.

Consistently, shuttle mediation may also be an ineffective solution as it can exhaust parties into premature agreement, as well as not effectively ensuring the relationship of control has ceased.

Accordingly, on the basis that mediation is not appropriate for allegations of domestic violence, it is equally unsuitable for allegations of workplace bullying. It was argued by Hadyn Olsen that:

The practice of demanding mediation as the first response to any workplace grievance (including Workplace Bullying) places our society back in the same position it was in the 60’s and 70’s in regard to domestic violence. It is an entirely inappropriate response to this problem.

In conjunction with this dynamic is the fact that there are very few options available to the target of workplace bullying. It can be that the target has already resigned, intends to resign or is still employed and wishes to remain employed. The target is likely to be placed in a position of being wedged in a toxic working environment because of their financial needs and a lack of options for alternative employment. This again places the target of workplace bullying in a particularly vulnerable position, which is unique to this category of dispute.

The defining feature of workplace bullying allegations is the power imbalance between the bully and their target, which is exacerbated if the employer is also the bully. Mediation in such conditions is likely to reinforce the dynamic and worsen the situation, as it would in the domestic violence context already discussed. Meanwhile, reaching a constructive outcome jointly between parties is the hallmark of mediation – that is it involves a compromise and a desire to settle. A bully is unlikely to have this aim but instead view the mediation as an opportunity to further manipulate the target. Furthermore, the target is likely to be further disempowered and unlikely to reach a favourable outcome because of a lack of capacity to negotiate with the bully.

Hadyn Olsen noted that he has not met any target of workplace bullying who feels mediation was fair for them but argues that instead, in most cases targets feel further abused and damaged by the process. Similarly, a representative from Northern Territory Working Women’s Centre stated that:

The imbalance of power is so profound that she is just not able to speak freely… I think it would be unsafe and really inappropriate if it required the person who was being bullied to sit face to face with the person who was bullying her….

Bullying is not and cannot be a neutral agenda item

In a typical mediation, the issue to be considered is one that both parties are equally as affected by or equally contributed to. But in the context of workplace bullying, the agenda is entirely based on the inappropriate behaviour of the bully in the workplace.

A mediator may struggle to frame this issue as an agenda item and by referring to it as a ‘relationship’ the target of the bullying may interpret this to mean the mediator does not believe the bullying occurred. At the same time, a bully would view this as a reinforcing their lack of fault. Therefore, in workplace bullying allegations the person and the issue cannot be separated and trying to frame it otherwise can be detrimental.

Mediation fails to punish past behaviour

Mediation focuses on the present and future relationship between the parties and does not punish past behaviour. This is because it usually involves a mutually engaged in conflict. But workplace bullying is different. There is clearly one victim; one person who needs recognition of what has occurred in order to heal and move on. Dr Caponecchia stated that:

Mediation is more focused on not whether it happened or not but, ‘Let’s get back to work’, which may mean transferring someone.

Facilitators of workplace mediation argue that this is a benefit of mediation because it offers a fresh start and is about moving forward. However it is unlikely that targets of severe bullying will be looking for a fresh start and, instead, are more likely to want recognition and an apology. This is particularly the case where the target has decided to resign from their employment.

Public interest

It may also be in the public interest for matters of workplace bullying to go to court and not to be held in a private mediation. Mediation keeps any wrongdoing outside public scrutiny or knowledge. This is not a good thing because the knowledge of the prevalence of workplace bullying is significantly restricted, which in turn, reduces the likelihood of policy being developed in response. Because of the high levels of workplace bullying in Australia, full transparency is necessitated to establish an effective response.

But does this mean mediation can never be appropriate for workplace bullying?

It is arguable that a complete power balance between parties to a mediation is not the norm and hence it is always the role of the mediator to manage this relationship and minimise the impact of any imbalance.

Power imbalance can be managed by:

the use of support persons for each party (whether that be a family member or otherwise);
effectively communicating the rights of each parties and ensuring they are aware of these rights;
reality testing the options available to both parties;
representation by an advocate; and
informing the target that they have specific rights against the bullying – such as the ability to lodge a formal complaint.

If it is believed that the imbalance of power is not so severe that a mediator can effectively manage it, mediation may potentially be appropriate. However this is going to very much depend on the particular situation. It is likely that a mediator is going to be able to more effectively manage the power imbalance if intervention is early. Mediation is of no use where the target is now seeking full justice or retribution.

Consequently the suitability of mediation very much depends on the stage of escalation of the bullying. It is thought that mediation can be a helpful early intervention technique. The House of Representatives, Standing Committee on Education and Employment (2012), inquiry into workplace bullying found that several submissions supported mediation as an early intervention. It was stated in that report that:

Mediation cannot be the panacea to workplace bullying, rather, it is an effective early intervention tool and needs to be applied on a case-by-case basis.

Moira Jenkins also supported the use of it as an early intervention model stating that:

I do not think mediation is appropriate later on when you have very damaged people, but as an early intervention I think it is great.

We should begin with the assumption that mediation is an inappropriate way of dealing with workplace bullying. Where the bully is the employer, this position will not change. In such cases, arbitration provides a more appropriate dispute resolution option as it offers the opportunity for the past wrongdoings committed by the bully to be discussed and for them to be held to accountable. This is an important process for the victim in moving on and essential to facilitate a productive working environment by focusing on past behaviour, which mediation fails to do. In addition, arbitration allows somebody in power to define what is and isn’t bullying and to avoid allegations by the bully of hypersensitivity in the victim.

Alternatively, however, if it is identified that the bullying is at the very early stages of escalation and that a mediator is able to effectively manage the existing power imbalance, mediation may then be carefully conducted. If there is any doubt, it is in the best interest of the general public and of the target, that mediation is avoided as a means of managing allegations of workplace bullying.

A consequence of this protection of the victim of workplace bullying may be, unfortunately, that their access to justice is reduced to some extent. However, this is, in many circumstances, a necessary concession. Additionally, the availability of arbitration, which is not an overly expensive option for litigants, ensures that justice is not inaccessible.

Carmelene Greco completed a Law/Arts degree, with a major in journalism, at Monash University in 2016. She is now a graduate lawyer at King & Wood Mallesons and has a keen interest in exploring alternative dispute resolution prospects within the commercial law context.

Nearly Neutral: A Mediator’s Best Bet

Posted on 08/02/2017 by Associate Professor Becky Batagol

By Amanda Selvarajah

This post is the third in a series of posts on this blog written by students studying Non-Adversarial Justice at the Faculty of Law at Monash University. Students were invited to write blog posts explaining various complex areas of law relating to dispute resolution to ordinary readers. The very best post on each topic is published here.

‘The Gate’ by Guillaume Delebarre: Creative commons source

The National Mediator Accreditation System removed “neutrality” as a requirement on their list of ethical standards in 2015. This may suggest a trend away from the truly “neutral” mediator in the sense of a ‘detached third-party’. But does this mean we are to rule out neutrality entirely as an ethical consideration in mediation? With a trend of increasingly interventionist mediators, a complete disregard of the concept could place participants at great risk of being subjected to ethically dubious decisions.

Perhaps the reason for the mediation community’s shift from neutrality is not because of a flaw in neutrality itself, but rather a failure to grasp a version of neutrality that can and should be an important element of an ethical mediation. Instead of defining neutrality as an unattainable attribute intrinsic in the nature of a mediator, perhaps we should be viewing neutrality as a constant practical endeavour throughout the mediation process, a mediator who’s nearly neutral.

Why Neutral At All?

A mediator in its simplest description is a ‘trained, impartial third party’ who assists parties in making their own decisions. However, mediation remains unregulated and virtually unmonitored as it is typically conducted in private with assurances of confidentiality. Mediated parties are expected to relinquish a guarantee of the principles of justice and fairness that would be inescapable in a common law court. It is these qualities of mediation that leave participants particularly vulnerable to a biased decision in the event of a potentially opinionated, interventionist mediator. Therefore, it is the consensual participation in the process and the assurance of “neutrality” that many consider the source of the process’s legitimacy.

On the spectrum of mediator involvement in mediation, the facilitative approach, which focuses a mediator’s role to procedural stages, leaves parties with as much freedom and control in the substance and outcome of the mediation as possible. The evaluative approach, on the other hand, has even been disregarded by some, like the Victorian Association for Dispute Resolution, as being a form of mediation at all. They argued that the mediator’s ‘input into the content, and sometimes the outcome’ of the mediation made the process inherently contrary to the core principles of mediation.

Such or any mediator involvement may suggest, as critics of the evaluative mediation approach do, an immediate breach of neutrality. But this is only the case if neutrality is restricted to a ‘strict, dualistic sense of the mediator either being or not being neutral.’

Why Not Be Absolutely Neutral?

To truly make the case for a re-imagined concept of neutrality, one must first accept the bold suggestion that mediations are not neutral in its literal sense and could likely never be so. Mental health professionals have found that ‘there is no such thing as total impartiality, neutrality, or lack of bias when working with people, even though as practitioners they may strive for such ideals.’ In mediation specifically, research has shown that in practice, mediators may affect and influence mediation at almost all stages of the process. Examples include ‘the ways they structure the interchange between the parties, in terms of the sequencing of storytelling and the framing of responses and what needs to be responded to.’ It follows then that any assessment of a mediator’s success in reference to their ability to be neutral, in the literal sense of the word, would set almost all our mediators up for failure.

However, regardless of a mediator’s ability to be neutral, there is the added consideration that absolute neutrality may not even be conducive to the goals of a truly successful mediation. For example, in the case of the simultaneous expectations that a mediator be both absolutely neutral but also committed to facilitating an equal conversation, one often comes at the cost of the other.

Mediated parties often experience a power imbalance. Therefore, a hands-off mediator may in these cases fail to protect ‘vulnerable parties from inappropriate pressure’. In family law mediation (family dispute resolution or FDR), for example, parties often meet at very unequal terms. Mediators in these cases may be caught between either claiming a position of absolute neutrality, thereby stripping them of the power to ‘redress imbalances’, or recognising a role in sometimes having to take ‘affirmative action… to achieve a balanced agreement.’

Family dispute resolution practitioners must consider if ‘family dispute resolution is appropriate’ before mediation is undergone. This may allow for vulnerable parties to be excluded from the mediation process, sparing mediators the struggle of balancing these competing expectations. But some victims still ‘feel that FDR processes fail to identify and manage the risk of family violence effectively.’ The exclusion also does nothing for parties beyond family abuse dynamics who may still be more vulnerable than the other party due to cultural, societal or financial factors.

This concept of absolute neutrality is similarly challenging for indigenous mediators, to whom Western notions of neutrality may not make sense. In indigenous mediation it has been recommended that a respected elder would likely be the more appropriate choice of mediator than a neutral third-party. Selecting a mediator for their ability to intimately understand the parties as opposed to their ability to detach themselves from them is arguably in direct opposition to Western expectations of a successful mediator. A commonality in our understandings of a successful mediation, however, may be the increasing interest in addressing the conflict at the heart of mediations.

Therapeutic jurisprudence, a philosophy focused on critically viewing our legal systems to maximise the health and wellbeing of those who engage with it, has been applied to improve and direct law reform throughout Australia’s legal system. Critically assessing the purely facilitative mediation process through a therapeutic jurisprudence lens unearths the potentially anti-therapeutic effects of having a non-interventional, solution-centric mediator who as a result, fails to address and redress the underlying tensions at the heart of parties’ relationships. The development of therapeutic jurisprudence throughout Australia is proof that the indigenous community’s focus on rebuilding and strengthening relationships is not unique and could be facilitated in mediations with a more involved mediator.

A New, Nearly Neutral Approach

Neutrality was seen as a cornerstone of mediation’s procedural fairness, the idea that ‘what is required by procedural fairness is a fair hearing, not a fair outcome’. The facilitative approach has, therefore, been described as having the highest regard for procedural fairness on the basis of perhaps a rather simplistic equating of a fair hearing with a decision-maker who allows parties to make their own case with as little intervention as possible.

This argument assumes, however, that participants of mediation are always equally capable of articulating and pursuing their own interests and that they are always more concerned with a practical outcome than a resolution of the underlying feelings and conflict which brought on the mediation in the first place.

However, research has shown that in mediation ‘the basis of authoritativeness (e.g. of the ability to gain voluntary acceptance from members of the public) is changing from neutrality-based to trust-based.’ This suggests that contrary to advocates for neutral mediators, parties may actually prefer a more interventionist mediator who is willing to foster openness and build a relationship of trust over a detached one.

So perhaps instead of aligning neutrality with a mediator who never intervenes, it would be best to hold mediators’ interventions to standards ‘of non-partisan fairness or impartiality’ instead. For example, weighing, as an objective third-party, whether an intervention would make sense to ‘facilitate a productive dialogue by encouraging or even coaching reticent or inarticulate parties’ to promote a generally more just proceeding. After all, in the immortal words of Theodore Roosevelt, ‘Impartial justice consists not in being neutral between right and wrong, but in finding out the right and upholding it, wherever found, against the wrong.’

Amanda Selvarajah is (@amanda_darshini) currently in her third year of the Bachelor of Law (Honours) program at Monash University. Her research has focused on questioning the limits of the law and its rooms for improvement across a variety of fields. Last year, her research into the abuse of forensic evidence in court was selected for presentation at the International Conference of Undergraduate Research.

Collaboration in Krakow

Posted on 02/02/2017 by Dr Rosemary Howell

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.

Being informed from within and without our fields and disciplines

Posted on 25/01/2017 by Kate Curnow

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.

DR Praxis

Posted on 14/01/2017 by Dr Rachael Field

DR Praxis[1]

The new work Australian Dispute Resolution Law and Practice (LexisNexis, 2017) articulates how there is a deep diversity in Australian DR practice which is grounded in a rich history (see Chapter 3). The early enthusiasm for ‘ADR’ was at times unbounded and uncritical, but the practice of DR in Australia is now well established and its roots are strong because they have been informed by developing critiques of DR processes across the matrix and by assessments of the potential of DR, including empirical studies and evaluations.

Nevertheless, there has, at times, been a certain level of disconnect between DR theory and DR practice. In order for DR to fulfil a new central role in legal professional practice in the future, a purposeful and rigorous approach is necessary to ensure that DR theory informs its practice and that practice developments inform DR theory. This is the DR praxis project; a project that is deserving of far more rigorous attention in the DR community. In the book, we flag the importance of the issue, highlight some key elements of DR praxis, and suggest some ways in which the praxis of DR can be sustained and supported into the future. There will always be a need to continue empirically researching and evaluating and theorising about DR systems. It is also important to draw from the existing body of theoretical, scholarly DR knowledge to inform the praxis project.

Praxis and DR advocacy[2]: Australian Dispute Resolution Law and Practice is about contemporary lawyering and legal practice in Australia, and how traditional approaches to the delivery of legal services and to ways of being a lawyer need to be reconceptualised. Lawyers must now be more than one dimensional adversarial fighters for rights and entitlements. For a sustainable future for the legal profession, lawyers must be multi-dimensional, multi-skilled, adaptable and agile practitioners in the context of the processes across the DR matrix.

How lawyers advocate in DR contexts, and what a legal DR advocate looks like (or should look like) is arguably one of the most important areas where a cultural shift is necessary for DR and legal praxis to move forward. It is critical that this shift is informed by the values and goals of DR and its theory (see Chapter 4). Both adversarial and non-adversarial advocacy knowledge, skills and attitudes are necessary for the provision of legal services to fulfil the DR values of justice, party autonomy and community. In Macfarlane’s words, lawyers must be able to ‘wear two hats’.[3]

Challenge: Some legal practitioners are resistant to accepting non-adversarial forms of advocacy as true advocacy – because legal advocacy has for so long been associated with adversarial approaches and court action. How can we promote non-adversarial forms of advocacy as having efficacy given the historical legal approach to advocacy?

[1] See for example, Richard J Bernstein, Beyond Objectivism and Relativism: Science, Hermeneutics and Praxis (University of Pennsylvania Press, 2011); Eric K Yamamoto, ‘Critical Race Praxis: Race Theory and Political Lawyering Practice in Post-Civil Rights America’ (1997) 95 Michigan Law Review 821.

[2] On this issue see for example, Julie Macfarlane, The New Lawyer (UBC Press, 2008). This section of the Chapter particularly draws from Rachael Field, James Duffy and Anna Huggins, Lawyering and Positive Professional Identities (LexisNexis Butterworths, 2014), ch 13. Other important contributions to the literature on legal advocacy in DR contexts include: Donna Cooper and Mieke Brandon, ‘Non-Adversarial Advocates and Gatekeepers: Lawyers, FDR Practitioners, and Cooperative Post-Separation Parenting’ (2008) 19(2) Australasian Dispute Resolution Journal 104; Donna Cooper, ‘Assisting Future Lawyers to Conceptualise their Dispute Resolution Advocacy Role’ (2013) 24(4) Australasian Dispute Resolution Journal 242; Donna Cooper, ‘The ‘New Advocacy’ and the Emergence of Lawyer Representatives in ADR’ (2013) 24 Australasian Dispute Resolution Journal 178;Donna Cooper, ‘Representing Clients from Courtroom to Mediation Settings: Switching Hats Between Adversarial Advocacy and Dispute Resolution Advocacy’ (2014) 25(3) Australasian Journal of Dispute Resolution 150; Donna Cooper, ‘Lawyers Behaving Badly in Mediations: Lessons for Legal Educators’ (2014) 25(4) Australasian Dispute Resolution Journal 204. See also, Olivia Rundle, ‘Barking Dogs: Lawyer Attitudes Towards Direct Disputant Participation in Court-Connected Mediation of General Civil Cases’ (2008) 8(1) QUT Law and Justice Journal 77; Olivia Rundle, ‘Lawyers’ Perspectives on ‘What is Court-Connected Mediation for?’ (2013) 20(1) International Journal of the Legal Profession 33; Olivia Rundle, ‘Lawyers’ Participation in Mediation and Professional Ethical Disposition’ (2015) 18(1) Legal Ethics 46; Olivia Rundle, ‘Lawyers’ Preparation for Court-Connected Mediation: The Supreme Court of Tasmania’ (2013) 32 University of Tasmania Law Review 20; Bobette Wolski, ‘On Mediation, Legal Representatives and Advocates’ (2015) 38 UNSW Law Journal 5; Paula Baron, Lillian Corbin and Judy Gutman, ‘Throwing Babies out with the Bathwater – Adversarialism ADR and the Way Forward’ (2014) 40 Monash University Law Review 283; Mary Anne Noone and Lola Akin Ojelabi, ‘Ethical Challenges for Mediators around the Globe: An Australian Perspective’ (2014) 45 Washington University Journal of Law and Policy145.

[3] Julie Macfarlane, above n 2, 98, 117.

DR Conferences in 2017

Posted on 03/01/2017 by Kate Curnow

A number of conferences and workshops with a dispute resolution focus or dispute resolution stream will be held in 2017.

Depending where you are (or whether you can travel), your interests (check the websites for program details, the streams and themes) and when they are being held, you may like to attend and/or look to present at:

The American Bar Association Dispute Resolution 19th Annual Spring Conference
19-22 April 2017
Hyatt Regency, San Francisco, USA
Website: ABA 19th Annual Spring Conference
International Meeting on Law and Society
20-23 June 2017
Sheraton Maria Isabel Hotel and Towers, Mexico City, Mexico
Website: LSA 2017
Socio-Legal Studies Association Annual Conference
5-7 April 2017
Newcastle University, Newcastle upon Tyne
Website: SLSA 2017
NOTE: Call for papers closes on 16 January 2017
The ADR Research Network Workshop
6-8 December 2017
The University of the Sunshine Coast, Sunshine Coast, Australia
See our earlier post for some initial details Beyond the Roundtable: Hobart 2016. More details and call for papers will be posted later on this blog later in the year.

Are there any other 2017 conferences or workshops you are aware of that DR academics or practitioners may find interesting?

Happy New Year from the ADR Research Network!

Posted on 02/01/2017 by Dr Rachael Field

To all our followers and supporters of the ADR Research Network Blog.

Happy New Year and our best wishes for 2017!

It’s fair to say that 2016 was our most successful year yet. The Blog achieved its highest number of views since it was established in 2013 with more than 9000 views and almost 6000 visitors. Compare this with just over 800 views and just over 400 visitors for 2013. The Network members posted 64 posts across the year on diverse and interesting DR matters. These posts reached readers on almost every continent of the world.

In 2017 we aim to continue our contribution to scholarly critical thinking about DR and its place in contemporary global societies. We look forward to growing the Network, and increasing the reach of our collective scholarship even further.

Thank you for following us in 2016 – we hope you will join us for another great year in 2017.

With our warmest wishes

The ADR Research Network Members

Conflict and disputes as lawyers’ business: cognitive, emotional and behavioural dimensions

Posted on 28/12/2016 by Dr Rachael Field

This is a further (edited) excerpt from Chapter 5 of our new book: Laurence Boulle and Rachael Field, Australian Dispute Resolution Law and Practice (Lexis Nexis, 2017) in which we discuss the nature and dimensions of conflict and disputes – particularly from the perspective that conflict and disputes are the core business of lawyering. We look forward to your comments and responses. Rachael and Laurence

Many disciplines investigate, research and analyse the nature and dimensions of conflict and disputes, from anthropology to sociology, and from psychology to political science.^{^[1]} The nature and dimensions of conflict are not, however, topics afforded significant attention within the traditions of law and legal practice. This is cause for surprise since a major part of law’s project involves dealing with conflict and disputes and their consequences, and there is significance in how legal events and interventions themselves impact on their scope, intensity and manageability. This Chapter suggests that conflict and disputes are the business of law and of lawyers, and their configuration should be as much the focus of the legal profession’s exercise of its expertise as bodily anatomy is to that of the medical profession.

The non-legal disciplines inform us that conflict and disputes are natural and everyday phenomena^{^[2]} encountered in homes, communities, boardrooms, parliaments and war zones throughout the world. They are played out vicariously in the news media and in television and in theatre and computer games and are not absent from non-human animals’ behaviours as well.^{^[3]} Whether between individuals, corporations or nation states conflicts and disputes all assume some degree of incompatibility among the parties involved, whether over objectives, resources, strategies, perceptions or other inconsistent preferences. The incompatibilities can lead to disagreement and disagreement can lead to some kind of struggle, where each side pursues its own preferences in ways not acceptable to the other. The struggle can be verbal, as in hostile publications or political polemics; tactical, such as the formation of alliances or engagement of lawyers; or activist, such as trade embargoes or armed hostilities.

Conflicts and disputes are seldom static in nature – they tend to be living organisms involving internal dynamics and fluctuating environmental pressures. While conflicts may commence as underlying feelings of uncertainty and unease over the prospective activities of others they can escalate into something more overt and significant. To take a topical example, there could be underlying tensions among farmers, exploration companies, government officials and politicians over properties targeted for coal-seam gas prospecting licenses.^{^[4]} This situation of covert conflict could endure for years in a relatively static state, despite occasional skirmishes from one side or the other, until there is a precipitating event which brings it into the open. The underlying conflict could evolve where one or other party takes public actions which raise contentious issues – for example government provides a licence for gas exploration against the wishes of a resistant farmer. Here there is overt behaviour which creates expectations of loss for the farmer in relation to the economic viability, environmental bio-security or the very existence of the family farm for future generations. The situation would evolve into a dispute when the licensed exploration company attempts to access the property and is obstructed by a protesting community group. The dispute could escalate where the latter are prohibited from their resistance activities by court order. There are now manifest issues requiring dispute management, namely the lawfulness of the prospecting corporation’s access to the farm, alleged non-compliance with the terms and conditions under which prospecting can occur, and the legalities of the protesting groups’ behaviour.

While the definitive DNA of conflict is yet to be revealed there is increasing knowledge and understanding about the phenomenon.^{^[5]} This knowledge is important for lawyering. Some commentators refer to three potential aspects to any conflict – the cognitive, the emotional and the behavioural.^{^[6]}

The first, cognitive, involves the perceptions, beliefs and understandings of those in conflict. Here parties could have a range of subjective perceptions that their needs are not being met because of the incompatible and unreasonable activities of others – for example a parent waiting for their children to be returned after an access visit perceives the other parent to be inconsiderate and believes they children’s interests are not best served by having access. The second is the emotional dimension, which involves the subjective feelings of people in conflict situations, including those directed at others involved in the conflict – for example the waiting party is upset, frustrated or angry over continual delays in returning the children. Both the cognitive and emotional facets of conflict might not be known to others if they are suppressed and not articulated by the party experiencing them. This is not the case with the third dimension, the behavioural, which comprises the external and observable actions which parties in conflict take in expressing their feelings, articulating their views on the situation’s rights and wrongs and pursuing concrete actions in attempting to get their needs met – the parent in the above example remonstrates with the recalcitrant party, seeks legal advice or attempts to amend the contact arrangements.

The dimensions of conflicts and disputes need not coincide with one another. Thus, a small business owner may have negative perceptions (cognitive) about a dispute situation with a large supplier, but chooses to suppress their sense of injustice or to withdraw from the situation (behaviour) for emotional relief (emotion); alternatively they might negotiate a settlement and implement its terms (behaviour) but still regard themselves as having been unfairly treated (cognitive) or experience prolonged anger towards the supplier (emotion). Some DR processes, such as arbitration and litigation, attempt to modify parties’ behaviours by getting them to commit to specific outcomes (behaviour) without attempting to change their perceptions (cognitive) about the conflict situation or to ameliorate negative feelings regarding the other party and themselves (emotions), for example by moving from anger to an acceptance of new realities.^{^[7]} Processes, such as facilitation and mediation, attempt in varying degrees to deal with all three dimensions of conflict.^{^[8]}

The emotional and psychological dimensions of conflict are related to the grieving process which parties experience after a significant loss. Thus, where a person has suffered the loss of a limb, their job or their hopes for being able to purchase a house, they are likely to experience some or all of the stages or phases of grief.^{^[9]} These include shock, denial, anger, bargaining and sadness, but they do not occur in a neat linear fashion. For a spouse in shock (‘I don’t know how this happened’) or denial (‘They’re just going through a phase, everything will be fine’) after the breakdown of a relationship it is not easy to negotiate or make appropriate decisions, for example in relation to the division of matrimonial property.^{^[10]} The grief and loss process may have to be managed before the respective party can say with conviction, ‘I just want to get on with my life and dividing up the property will help with that’. Once a person has reached the ‘acceptance’ stage of the grieving process they are more able to create new meanings for their lives, and to participate authentically in dispute resolution processes.^{^[11]}

Parties’ beliefs and the meanings they attach to past events affect all the dimensions of conflict and disputes. Where parties are acting out in contested situations their attitudes and behaviours are predicated on beliefs about what they deserve or can reasonably expect, based on life experiences, on what others have told them or on their professional advice. For example, changes in welfare regulations may lessen the benefits for senior citizen Ruby. However, Ruby may have a strong sense of entitlement to benefits, based on her many years of work, on serving with distinction in the military and on paying taxes throughout her life. These together create subjective beliefs as to what is right and wrong in her situation and brings her into conflict, and potential dispute, with welfare agencies and government. Beliefs are not easy to change. However, a conciliator or other intervener who acknowledges Ruby’s beliefs and understands their significance for her perceptions and behaviour may be able to assist her through the conflict process.

An understanding of the dimensions of disputes, of their potential to escalate and of the loss and grief conflicted parties might be experiencing, provides insights for lawyers into what particular DR process will respond most appropriately to their clients’ needs.^{^[12]} Some processes are suited to dealing with substantive needs, such as payment of money or assertion of intellectual property rights, thereby forcing one or both parties to modify their behaviours. Some deal better with the psychological and emotional factors, referred to above, such as shock, anger and frustration over past behaviours and current recalcitrance. Yet others deal with cognitive issues relating to perceived unfairness or powerlessness by providing procedural steps which convey respect and dignity, productive avenues of communication and the maintenance of ongoing relationships. The law has traditionally been inclined to focus on the substantive and procedural needs of clients, whereas some of the processes in the contemporary DR matrix aim to engage as well with the psychological and emotional dimensions.

[1] The term itself derives from Latin, meaning ‘to strike together’.

[2] See John Paul Lederach, Preparing for Peace: Conflict Transformation Across Cultures (Syracuse University Press, 1995) 8-9.

[3] While this is a truism, studies of animals in conflict situations show how they elicit ‘mediation’ and ‘arbitration’ behaviours from other animals. See generally Frans de Waal, Our Inner Ape (Granta Books, London, 2005) and Frans de Waal (Stephen Macedo and Josiah Ober (eds)), Primates and Philosophers: How Morality Evolved (Princeton University Press, 2009).

[4] On managing these issues see Laurence Boulle, Tina Hunter, Michael Weir, Kate Curnow, ‘Negotiating Conduct and Compensation Agreements for Coal Seam Gas Operations: Developing the Queensland Regulatory Framework’ 17 (2014) The Australasian Journal of Natural Resources Law and Policy 43.

[5] For leading Australian and international texts on conflict and its management see footnote 1 of Chapter 5 of Laurence Boulle and Rachael Field, Australian Dispute Resolution Law and Practice (Lexis Nexis, 2017).

[6] See Bernard Mayer, ‘How We Experience Conflict’ and ‘What Causes Conflict’ in The Dynamics of Conflict: A Guide to Engagement and Intervention (Jossey-Bass, 2nd ed, 2012) 3-4 and 8-10 respectively. See also Laurence Boulle, Mediation: Principles Process Practice (Lexis Nexis, 3rd ed, 2011) 108-9.

[7] See Robert I Simon and Daniel W Shuman (eds), Retrospective Assessment of Mental States in Litigation: Predicting the Past (American Psychiatric Publishing, 2008).

[8] See for example, Ray Friedman et al, ‘The Positive and Negative Effects of Anger on Dispute Resolution: Evidence from Electronically Mediated Disputes’ (2004) 89(2) Journal of Applied Psychology 369.

[9] A classic text is Elizabeth Kubler-Ross and David Kessler, On Grief and Grieving: Finding the Meaning of Grief Through the Five Stages of Loss (Scribner, 2014).

[10] Or in relation to parenting matters: Joan B Kelly, ‘Parents with Enduring Child Disputes: Multiple Pathways to Enduring Disputes’ (2003) 9(1) Journal of Family Studies 37.

[11] See Esther Davis, Frank Deane and Geoffrey Lyons, ‘Prediction of Individual Differences in Adjustment to Loss: Acceptance and Valued-Living as Critical Appraisal and Coping Strengths’ (2016) 40(4) Death Studies 211; and Froma Walsh, Strengthening Family Resilience (Guilford Publications, 2015).

[12] See for example, Penny Lakey, ‘An Exploration of Multiparty Dispute Resolution When the Impending Death of a Loved One Creates an Escalation in Family Conflict’ (2007) 10(3) ADR Bulletin 56

Should mediation be regarded as a separate profession?

Posted on 23/12/2016 by Associate Professor Becky Batagol

By Spencer Csapo-Grege

This post is the second in a series of posts on this blog written by students studying Non-Adversarial Justice at the Faculty of Law at Monash University. Students were invited to write blog posts explaining various complex areas of law relating to dispute resolution to ordinary readers. The very best post on each topic is published here.

I INTRODUCTION

For effective dispute intervention, mediation may be a necessity. Issues may arise as intervention through mediation requires a particular skill set that is not taught to all mediators. Because mediation requires independence of knowledge it could thus benefit from existing as a unique profession.

The central issue is whether the lack of legal, or other specialised expertise in independent mediation outweighs the positive benefits of independents being solely trained in mediation skills. I propose that it would – mediation should not be a distinct profession, based on three peripheral issues.

The first is that of qualification, it is already evident that Mediators can be sufficiently qualified to demonstrate an appropriate standard in their mediation ability.

The second issue addresses the need for professionalism, over the potential loss of individual comfort.

And, the third is the issue of Content – independent mediators may not understand, and hence be able to implement, necessary content into their mediation, such as a mediator not being able to recommend legal options due to a lack of formal training in the law.

Mediation should remain a separate profession. Photo: creative commons source

II ISSUES OF QUALIFICATION

Dispute resolution practitioners currently rely on their status as professionals in other fields such as law, psychology or social work to demonstrate their expertise into the area of mediation. Due to this diversity there are mediation laws which both regulate the requisite standard of mediation, as well as mediator accreditation.

In the National Mediator Accreditation System mediators do not require a formal qualification to satisfy mediation standards. A requisite of experience in mediation, or good personal attributes can satisfy the qualification criteria – demonstrating the potential of being insufficient.

Hence it can be erroneously said that mediation would benefit from formal qualification as its independent identity as a profession will be established, rectifying this potential of insufficiency. However, mediation involves dealing with the individual’s specialised issue, and the accumulation of content relevant experiences aids in its resolution. Thus the identity of mediation is based on the content mediated upon, not on the process.

The current system is effective in recognising this through interconnecting mediation, as dispute resolution, into its relevant field, such as law.

If mediation was a separate profession, there may be two possible financial benefits. Firstly, having to pay someone who has been educated in another profession to mediate, such as law, can be more costly than if mediation was distinct, because the education requirements would likely be less. Secondly, because of this educational difference, Mediation is subject to possible monetary exploitation – lawyers’ fees can be standardised as expensive due to their legal expertise, and not because of their ability to mediate.

This is problematic because monetary gain should not be the driving force behind mediation. If a mediator only cares about making a profit, and not the parties’ situation, then they may stall time to earn a higher profit, even though it is not in the best interests of those involved. Thus a distinct profession of mediation, that is capable of attracting individuals desiring mediation for reasons other than financial gain remains beneficial.

Even though there is possible financial detriment and shortage of formal qualification, the established method of mediator qualification remains sufficient because it binds and aligns dispute intervention to its relevant field. However, the current system of qualification may not be adequate. This is because the National Mediation Accreditation System primarily focuses on facilitative mediation and fails to cover the full range of mediation practices.

However, this flaw also represent the adverse effect that separate mediation can bring – an inapplicability of appropriate mediation principles to specific subject matter and a possibility of exploitation due to mediator exclusivity. Thus, current mediation regulation should not be revolutionised so that mediation is an independent profession.

III ADDRESSING INDIVIDUAL WELL-BEING THROUGH PROFESSIONALISM

A Assistance of Therapeutic Mediation?

A contentious issue with the integration of mediation with other fields is the impact of the people involved on an individual level. If mediators were trained independently, there would be stronger emphasis on the individual and the relationship of the parties – thus therapeutic mediation could benefit. However, a professional able to help with the specific dispute at hand is likely to aid individual well-being because the parties will appreciate the mediator’s assistance on the basis of their professionalism – finding comfort in the mediator having relevant expertise to deal with the content matter of issue. For example, although a psychologist has better educated understanding of, and thus will take into account, the individuals emotional and mental well-being – as opposed to a lawyer. It is probable an individual will be more distressed in a psychologist trying to mediate for them in a matter of law, then a lawyer, because the psychologist is not trained in legal procedure.

B Advancement of Facilitative mediation?

Facilitative mediation is proven to be the most common form of mediation in Australia and is thus the recognized standard. If the integration of mediation advances facilitative mediation, then it indicates that mediation should not be a distinct profession. Integrating mediation provides for a more accurate basis of assessing an individual’s needs, which is important to facilitation, because it’s concerned with addressing both the personal and commercial needs of the parties. And, complete understanding of the individual’s options and abilities, in the case of law, are only prevalent because of the mediator’s legal background. Because mediators cannot usually give legal advice, parties are encouraged to have a lawyer attend with them as the need for legal understanding arises. Thus there is an issue in that a lawyer may want the most profitable outcome for themselves, and not necessarily the best situation for their client, and can, as an advisor to a party in mediation, cause disruption. This issue would be increased if mediators were separate and did not have legal training, because people would be further required to bring lawyers with them, for greater comprehension in choosing the best course of option between mediation and legal. Due to this dependent variable, the parties’ needs may not be prioritized and therefore a separate profession of mediation should not be established.

IV DIFFERENCE IN CONTENT

If mediation was a distinct profession would need to overcome the issue of how to achieve specialization in the subject matter of each mediation. We know that mediators intervene in the content of disputes, even in facilitative mediation. For effective intervention they must be familiar with the subject matter so that they can adequately provide information – based on all available knowledge. Content differentiation varies depending on the type of mediation, however, as outlined below, in general it is likely to indicate that mediation should not be a separate profession, but instead exist as a form of specialisation within its relevant profession. For example – as a lawyer, psychologist or social worker specialising in mediation, with requisite qualifications that demonstrate both their ability to work in the relevant field, as well as their ability to mediate.

The most appropriate option for parties to take may not be that of pure mediation but, for mediation to be a specialisation in a range of professions, such as law. Lawyers are trained in law and can rely on that experience to resolve the issue in a way that may be practical in the circumstances. This is because the legal avenue, may be more feasible then pure mediation. Thus, for a dispute to be resolved in a balanced manner the recommendation of legal options can also play a vital role in mediation – such as through settlement mediation to determine if the matter can be practically resolved in the legal sense, not just through negotiation. Hence, if mediation was independent, it would be difficult to intervene in disputes because the intervener, the mediator, may not fully comprehend the matters of discourse.

Mediation as a separate profession causes another issue in that if a mediator was mediating on a legal matter, but was not trained in the law, they would not be able to predict court decisions, and pressure parties into accepting on the basis of their predictions. Essentially evaluative mediation would be non-existent, or at best, less accurate. Thus, as evident, it is not feasible to blend all the content on which mediation can be applied, into one distinct profession.

V CONCLUSION

Mediation incorporates differing aspects and thus its independence can create broadness which undermines the field itself. The first two issues discussed, that of qualification and professionalism are contentious, and indicate possible support for independence – financial benefit towards the public and emotional health of the parties. Support for the third issue is highlighted as many mediation services focus on the resolution of relationship issues, and not just legal problems. However because relationship issues can be largely influenced by the law, a requisite of comprehension which remains vital to mediation. The third concern discussed demonstrates that this requisite of comprehension only exists with the knowledge gained through formal training in a relevant profession – supporting the current system. Mediation is hence mutually intertwined with its relevant subject matter, whilst benefit is also provided in its separation. As a result, the most suitable conclusion is that there should be organisations within the relevant professions, such as law, to manage mediation – it should be an area of specialised expertise, and not an area of independence.

Mr Spencer Csapo-Grege is a third year law student at Monash University with a primary interest in international law, banking and investments. He wishes to focus specifically on international investments, with a particular orientation towards banking. Furthermore, Spencer aims to be involved with international politics through the United Nations – he believes that state sovereignty has no place in a globalised world. For the practice of domestic law, Spencer’s interests are in alternative dispute resolution as he believes that most issues should be resolved outside of the court system. Currently Spencer runs a licensed investigations business and aims to finish his undergraduate studies at the end of 2017.