Stefan Karpiniec, Albert’s Tomb, Organ Pipes Mt Wellington Tasmania Australia 1974

Creative Commons Licence 

https://commons.wikimedia.org/wiki/File:Organ_Pipes,_Mt_Wellington_-_One_Day_on_the_Organ_Pipes_-_2773115903.jpg 

Finally, the 2016 Australian Dispute Resolution Research Network Roundtable has arrived in climatically changeable Hobart. We have an amazing selection of works in progress to be rigorously discussed in a mutually supportive environment. The Roundtable is an opportunity for risk taking and community building. Presenters (some speaking on behalf of co-authors) and their working titles are (in the order to be discussed):

• Olivia Rundle, A method to unlock hidden research expertise: making “failure” visible
• Lola Akin Ojelabi, Exploring ”voice” in mediation
• Becky Batagol, Beyond family law: Mediating family violence safely
• John Woodward, ADR in the Federal Circuit Court – A case of falling between two stools?
• Dominique Allen, Using ADR to resolve Workplace Discrimination Claims: Pitfall and Benefits
• Alpana Roy, Online dispute resolution in the domain name space
• Emma-May Litchfield, The importance of understanding the stories of mediation trainers
• Jon Crowe, Two models of mediation ethics
• Sue Douglas, Socio-legal constructions of impartiality in mediation
• Lisa Toohey, Information use in negotiating post-separation parenting arrangements: A pilot study
• Samantha Kontra, Legal negotiation: What is in a definition
• Geneveive Grant, Preparing the future profession: online dispute resolution in legal education
• Bobette Wolski, Ethical duties owed by mediators: Lessons from Australia’s NMAS Practice Standards
• Bruno Zeller, The utility of Article 34 and 36 of the Model Law. The issue of public policy?

Our commentators include the above presenters as well as Kate Curnow, Rosemary Howell, Pauline Roach and Samantha Hardy.

Watch for live tweeting during the Roundtable @adrresearch #ADRRN16

Discussion sessions will be held to talk about this blog and the way that we organise the network, membership, and positions. If you are not participating in the Roundtable but would like to offer your point of view, please contact Becky Batagol about the blog and Jon Crowe about the Network’s membership and structure.

Watch this space for news of what happens to the works in progress after the Roundtable. We hope that all authors will make a post during 2017 to report what happened next.

This is an excerpt (taken from the final author version and with edited footnotes) from our new book: Laurence Boulle and Rachael Field, Australian Dispute Resolution Law and Practice (Lexis Nexis, 2017) in which we support the move towards making the language of dispute resolution more contemporary by referring to DR rather than ADR. We look forward to your comments and responses as we post a number of excerpts over the month of December. Rachael and Laurence

Defining dispute resolution is not an easy task.^[1] There are many different processes that fall under the ambit of ‘DR’, and to complicate matters there is much internal diversity within processes which have the same label. When DR processes such as mediation and conciliation started to be widely used, they were collectively referred to as ‘alternative dispute resolution’ (ADR).  The acronym ADR originally denoted processes developed, intentionally or organically, as alternatives to those provided by courts and tribunals in formal justice systems.[2] Initially, there was angst and argument about what should be included in, or excluded from, the term.^[3] While ADR was originally associated with mediation, it came to include other processes such as neutral evaluation and case appraisal. This resulted in NADRAC (the National Alternative Dispute Resolution Advisory Council) defining ADR as,

… an umbrella term for processes, other than judicial determination, in which an impartial person assists those in a dispute to resolve the issues between them. ADR is commonly used as an abbreviation for alternative dispute resolution, but can also be used to mean assisted or appropriate dispute resolution. Some also use the term ADR to include approaches that enable parties to prevent or manage their own disputes without outside assistance.[4]

The NADRAC approach emphasised that ADR was understood in contradistinction to litigation. This reinforced rhetorical dichotomies in the literature around formal versus informal processes; speedy versus slow processes; processes that invite direct party participation versus those that exclude party participation; processes controlled by the parties versus those controlled by third parties; expensive versus inexpensive processes; coercive versus consensual processes; binding versus non-binding processes. These sorts of binary distinctions have always been simplistic and confining, and have long (and rightly) been acknowledged as such. These distinctions were based on false assumptions about levels of consistency and unity within ADR processes,^[5] which obscured ‘the many and important distinctions between different ADR processes, lumping them together as if ADR was one homogenous institution set apart from the courts’.[6] As a result, ADR processes were depicted as ‘the other’ (to litigation), bestowing a primacy on litigation that was historically and socially misleading in terms of the extent of litigation’s contribution to overall dispute resolution systems.[7] There is, however, another sense in which litigation enjoys a normative ‘primacy’ in legal dispute resolution: it has operated, and continues to some extent to operate, as an ultimate point of reference for all other dispute resolution processes and it has historically cast a shadow over their operation.

In the early 1990’s Julian Riekert, one of Australia’s founding writers in the area, identified three descriptors of ADR: first, ADR as including all forms of dispute resolution other than litigation; second, ADR as including dispute resolution processes that leave the form and content of any settlement to the parties; third, ADR as involving non-litigious processes with the intervention of an outside party.^[8] Riekert’s first definition continued the trend of defining ADR by reference to its alternative status to litigation.^[9] ADR was thus positioned for many years as the alternative option, and almost in opposition, to litigation. As a result, ADR processes and practices were viewed by some, particularly in the practising legal profession, with suspicion and distrust.[10] To redress these perceptions there were suggestions that ADR should be understood as signifying ‘additional’,^[11] ‘assisted’,^[12] ‘appropriate’,^[13] ‘administrative’^[14] or ‘amicable’ dispute resolution.^[15]

It is fair to say, then, that the use of the word ‘alternative’ as a descriptor for DR has long been inaccurate.[16] The processes understood to fall within its ambit are no longer  ‘alternative’ or ‘marginal’ because they are in fact often the primary, dominant or mainstream systems for resolving and managing conflicts and disputes, and are often sought out by the parties or mandated by DR clauses or by legislation.[17] Indeed, litigation might now be argued to be the true ‘alternative’ to the mainstream treatments of disputes, notwithstanding its normative influence in law and dispute resolution referred to above. Nevertheless, the term ADR still has currency and the durability of the acronym has meant that proposals for the adoption of terms such as those listed above, or other examples such as ‘innovative’ dispute resolution, or ‘non-adversarial justice’, have not gained the traction that might be expected or that they might deserve.^[18]

While the term ADR remains widely used and recognised, and while it is still the case that formal legal and justice systems continue to some extent to privilege litigation, there is now less anxiety over definitional questions, and over what is and what is not included in generic terms in the field. It is propitious that binary distinctions between ADR and litigation, and their respective attributes, are generally no longer regarded as appropriate. Litigation too has lost much of its assumed consistency and uniformity and currently has its own variations, adaptations and mutations, as we discuss in Chapter 10. Moreover the ‘institutionalisation’ of ADR has brought it within the purview of courts, tribunals, agencies and other aspects of formal justice processes where it is one component of overall systems for and approaches to assisting people in dispute to resolve and manage their matters. In other words, with ADR now established within courts, government agencies and private enterprises it must be viewed as part of the overall schema of dispute handling in the legal system and in society more broadly. Today we have a great diversity of processes available both within and outside the courts. There is also a realisation that whilst most disputes are not dealt with in litigation, non-litigated disputes are managed, at least to some extent, in the ‘shadow of the law’, that is they are informed by what would or could happen if the matter were litigated.^[19]

Our approach in this book is to avoid the term ‘alternative’ in identifying dispute resolution processes other than litigation, and simply to refer to ‘dispute resolution’ (DR) as encompassing all processes, including litigation.[20] ADR remains an historical term of art, recognised and understood by many within the legal and justice communities, but it is no longer a relevant or accurate descriptor for the future of DR practice, especially in legal contexts. It is used in this text only to reflect its use in cases or legislation or where its historical legacy makes it appropriate. When needing to distinguish non-litigious processes we refer to non-litigation DR (NLDR).

^[1] Eric Green was arguably the first to use the term ‘alternative dispute resolution’. See Eric Green, ‘Settling Large Case Litigation: An Alternative Approach’ (1978) 11 Loyola of Los Angeles Law Review 493. The Australian Productivity Commission has also recommended that common definitions about legal services be adopted in order to ‘maximise the usefulness of legal services data sets, (and) reform in the collection and reporting of data’: see recommendation 25.2 in Productivity Commission, Access to Justice Arrangements, Report No. 72 (Australian Government, 2014). See also Australian Law Reform Commission, Review of the Adversarial System of Litigation ADR — its Role in Federal Dispute Resolution, Issues Paper 25 (ALRC, 1998) section 2; Law Reform Commission, Ireland, Report on Alternative Dispute Resolution: Mediation and Conciliation, LRC 98-2010 (LRC Ireland, 2010), http://www.lawreform.ie, citing George Applebey, ‘What is Alternative Dispute Resolution?’ (1991-1992) 15 Holdsworth Law Review 20.

[2] See Frank EA Sander, Varieties of Dispute Processing, Address given at the Pound Conference on Causes of Dissatisfaction with Justice (1976), reprinted in A Leo Levin and Russel R Wheeler (eds), The Pound Conference: Perspectives on Justice in the Future: Proceedings of the National Conference on the Causes or Popular Dissatisfaction with the Administration of Justice (West Publishing Co, 1979).

^[3]  Most notable were debates about whether arbitration could properly be included within the suite of ADR processes.

[4] NADRAC, Dispute Resolution Terms: The Use of Terms in (Alternative) Dispute Resolution, (Australian Government, 2003), 4. See also NADRAC, Your Guide to Dispute Resolution (Australian Government, 2012), 5.

^[5] Brunet, for example, noted that ‘ADR is not a unitary concept’: Edward Brunet, ‘Questioning the Quality of Alternative Dispute Resolution’ (1987) 62 Tulane Law Review 1, 10.

[6] Robert A Baruch Bush, ‘Defining Quality in Dispute Resolution: Taxonomies and Anti-Taxonomies of Quality Arguments’ (1989) 66 Denver University Law Review 335, 343.

[7] For example, Galanter has noted ‘the negotiated settlement of civil cases is not a marginal phenomenon; it is not an innovation; it is not some unusual alternative to litigation’: Marc Galanter, ‘A Settlement Judge Not a Trial Judge: Judicial Mediation in the US’ (1985) 12 Journal of Law and Society 1.

^[8] Julian Riekert, ‘Alternative Dispute Resolution in Australian Commercial Disputes — Quo Vadis?’ (1990) 1 Australian Dispute Resolution Journal 31.

^[9] This, however, did not include socially disapproved methods of dispute resolution such as coercion. Another critique of the word ‘alternative’ is that it implies deviance from a norm, as in ‘alternative life style’; in this sense, too, it was argued that labelling the new developments as ‘alternative’ processes was unfortunate. However, for others the concept ‘alternative’ carried the positive implication of difference from convention. In common parlance ‘alternative’ has a wide range of connotations, from approving notions of something different to the staid and conventional, to derogatory senses of deviation from the accepted and normative.

[10] Owen M Fiss, ‘Against Settlement’ (1984) 93 Yale Law Journal 1073 commenting at 1075: ‘I do not believe that settlement as a generic practice is preferable to judgment or should be institutionalized on a wholesale and indiscriminate basis. It should be treated instead as a highly problematic technique for streamlining dockets.’

^[11] Sir Laurence Street, ‘The Language of Alternative Dispute Resolution’ (1992) 66 Australian Law Journal 194. Street’s preference for the term ‘additional’ did not imply rejection of emphasis on litigation, which he considered a ‘fundamental element’ of western democracy. Rather, he viewed ADR as ‘supportive’ of litigation. See also David Spencer, Principles of Dispute Resolution (Lawbook Co, 2011), 3.

^[12] See, for example, Paul Lynch, ‘The Implementation of Assisted Dispute Resolution in Taxation of Costs in Queensland — Amendments to Order 91 of The Rules of the Supreme Court of Queensland’ (1995) Queensland Law Society Journal 53.

^[13] The term ‘appropriate dispute resolution’ is still used in Victorian legislation, keeping the acronym alive – see, for example, the Civil Procedure Act 2010 (Vic), s 77. See also Department of Justice, Victoria, New Directions for the Victorian Justice System 2004–2014: Attorney General’s Justice Statement (Victorian Government, 2004), 33 where it is said that ADR is increasingly referred to as ‘appropriate dispute resolution’, ‘in recognition of the fact that such approaches are often not just an alternative to litigation, but may be the most appropriate way to resolve a dispute’, citing Chapter 4 of the Victorian Law Reform Commission, Civil Justice Review: Report (Victorian Government, 2008), 212.

^[14] This expression is more limited in that it refers to steps taken during the performance of a construction project by those responsible for delivery of the project rather than by outside third parties. See, for example, Douglas Jones, ‘A Critical Analysis of the Means Commonly Adopted to Avoid Disputes in the Construction Industry’ (1998) 14 Building and Construction Law Journal 31, 33.

^[15] See, for example, David Hollands, ‘FIDIC’s Provision for Amicable Settlement of Disputes’ (1989) 6 (1) International Construction Law Review 33. See also the International Chamber of Commerce, Rules of Arbitration, in force as from 1 January 2012 which refer in Appendix IV on Case Management Techniques to ‘amicable’ dispute resolution methods, http://www.iccwbo.org/products-and-services/arbitration-and-adr/arbitration/icc-rules-of-arbitration/.

[16] In some contexts ‘ADR’ is part of a broader concept of ‘resolution processes’ for example the Civil and Administrative Tribunal Act (NSW) 2013, s 37 is headed, ‘Tribunal to promote use of resolution processes’ and permits the Tribunal  to use (or require parties to proceedings to use) any one or more ‘resolution process’. It defines ‘resolution process’ as any process, including … alternative dispute resolution, in which parties are assisted to resolve or narrow the issues between them.

[17] Anne Bihancov, ‘What is an Example of a Good Dispute Resolution Clause and Why?’ (2014) Evaluation of ADR Paper 3 available from http://www.civiljustice.info/adreval/3.

^[18] In 1994 McLaren and Sanderson proposed the use of the term ‘innovative dispute resolution’: see Richard McLaren and John Sanderson, Innovative Dispute Resolution: The Alternative (Carswell Thomson Professional Publishing, 1994). Another formulation is ‘less-drastic’ forms of dispute resolution: see William Fox, International Commercial Agreements (Kluwer Law International, 3rd ed, 1998), 213. See also, Michael King, Arie Freiberg, Becky Batagol and Ross Hyams, Non-Adversarial Justice (The Federation Press, 2^nd ed, 2014).

^[19] Robert Mnookin and Lewis Kornhauser, ‘Bargaining in the Shadow of the Law: The Case of Divorce’ (1979) 88 Yale Law Journal 950. But see Carrie Menkel-Meadow, ‘Lawyer Negotiations: Theories and Realities — What We Learn from Mediation’ (1993) 56 Modern Law Review 361 at 371, querying whether Mnookin and Kornhauser are correct in their assessment of how the law influences out of court settlements.

[20] Note the title of NADRAC’s definitions publication changed from Alternative Dispute Resolution Definitions in 1997 to Dispute Resolution Terms: The Use of Terms in (Alternative) Dispute Resolution in 2003. See also Policy Developments, ‘Towards Consistency in ADR Terms’ (1998) 1(1) ADR Bulletin 7.

Professor David Bamford of Flinders Law School invites interested dispute resolution researchers to attend the 2017 Civil Justice Research and Teaching Symposium. Keynote speaker is Carrie Menkel-Meadow, internationally renown dispute resolution scholar. An additional bonus is that the Adelaide Fringe Festival is on at the same time. You will see from the invitation that the Call for Papers is open.

The Civil Justice Research and Teaching forum is an established gathering of legal academics who teach civil procedure and conduct research into civil justice issues. Typically these gatherings have been informal and supportive opportunities to exchange ideas. There are many excellent reasons for dispute resolution focused academics to engage with this group. Obviously, formal civil justice processes are simply one narrow part of the broader dispute management and resolution system that deals with private disputes. As David Bamford said when I asked him whether I could make this post:

I would encourage the  dispute resolution scholars to attend. I really see what we do as a subset of the DR field – DR using courts.

To properly understand the civil justice system, it is essential to know about dispute resolution mechanisms that are part of that system. This is reflected in reports such as the Productivity Commission’s 2014 Access to Justice Arrangements, the focus on dispute resolution in civil justice research (see for example the Australian Centre for Justice Innovation’s Civil Justice Online Clearinghouse), and the teaching of dispute resolution within civil litigation/procedure units in Australian law schools (see for example: NADRAC, Teaching ADR in Australian Law Schools (2012); Pauline Collins, ‘Resistance to the Teaching of ADR in the Legal Academy’ (2015) 26 Australasian Dispute Resolution Journal 64, 68;  James Duffy & Rachel Field, ‘Why ADR Must be a Mandatory Subject in the Law Degree: A Cheat Sheet for the Willing and a Primer for the Non-believer’ (2014) 25 Australasian Dispute Resolution Journal 9, 17; Kathy Douglas, ‘The Teaching of ADR in Australian Law Schools: Promoting Non-Adversarial Practice in Law’ (2011) 22 Australasian Dispute Resolution Journal 1).

Many dispute resolution researchers who teach in law schools will be aware that consultation is in progress regarding a proposed amendment to the LACC/Priestley 11/Admission Requirement subject area of “Civil Procedure.” Essentially, the amendment would redefine the subject area as “Civil Dispute Resolution” and add “Dispute Resolution” to the list of sub-topics that must have been studied by applicants for admission to legal practice. This change reflects the reality that pre-trial civil procedure cannot be taught in isolation from dispute resolution mechanisms other than trial. The change has the potential to build better links between academics focused upon formal justice system processes and those focused mainly on non-judicial decision making. The Civil Justice Research and Teaching Symposium is an excellent opportunity to strengthen those bonds.

Some of our network members are already part of the civil justice research and teaching group, and we look forward to some new faces in Adelaide.

A holiday in Italy is always a wonderful experience, especially when it includes the beautiful city of Florence. My recent Italian holiday was made even more pleasurable by the opportunity to visit with the Chiara Tondini and Nadia Sportolaro, the Managing Team of The Florence International Mediation Chamber (FIMC).

A branch of the Florence Chamber of Commerce, FIMC was established in 2015 with the goal of offering an international mediation service to Italian companies involved in international commercial relationships and to foreign companies who very wisely choose to resolve their disputes in Florence.

FIMC has a lot to offer its commercial clients. It has a growing panel of experienced mediators from around the world (including Australia) accredited to rigorous international standards and a mediation room with a marvellous view over the city – a drawcard in itself!

FIMC is continuing to build its profile and will host the Florence session of the Global Pound Conference series, an international program involving over 36 events in more than 26 countries and which has been featured in several of these blog posts.

FIMC is active internationally – for example, it is working with the Permanent Court of Arbitration in The Hague to secure the right to become the Italian host for its arbitrations and mediations. It is also an official observer of the UNCITRAL Working Group II which is investigating developing an enforceability vehicle for international mediated settlement agreements along the lines of the New York Convention which applies in the arbitration environment.

The Chamber of Commerce of Florence (CCF) of which FIMC is a branch, was founded in 1770 – via a statute enacted by Grand-Duke Pietro Leopoldo of Tuscany.  Since 1998 it has been handling domestic mediation services and 6,000 cases later it has an enviable track record.

The CCF domestic mediation service operates under Legislative Decree no. 28/2010, the single legislative instrument controlling both mandatory and voluntary mediation in Italy. It ensures that parties cannot litigate most (but not all) matters without a trial of mediation.

With typical Italian creativity, the constitutional challenge to 28/2010, spearheaded by the legal profession (which succeeded on a technicality) has been overcome by an amendment which has proved wise and durable – parties are still required to attend the commencement of a mediation prior to issuing legal proceedings, however they are given the opportunity to opt out of the process before the formal mediation commences.  Once the parties agree to commence a mediation and settle the dispute, the operation of the Legislative Decree creates an immediately enforceable agreement – this provision extends to both mandatory and voluntary mediation.

The operation of this regime has been surprising successful – an interesting lesson for us in Australia. The chart below, provided by FIMC, provides insight into the success of the process.  

As Chiara and Nadia explain, requiring all parties to come to the mediation table, even in a preliminary way, provides the opportunity for parties, who might otherwise not be willing to initiate a mediation, to consider what mediation has to offer and choose to stay. The process is also efficient, low cost and not punitive for those parties who do opt out – removing the argument lawyers often use here about the unnecessary expense imposed by a mandatory regime.

As the chart demonstrates, more than 50% of parties who attend the introductory session choose to stay and of those matters, more than 60% settle.

Yet another reason to visit Florence![1]

[1] Discover more at: www.fimcmediation.com

Dr Sue Douglas‘ presentation at the Australasian Law Teacher’s Association Conference in Wellington, New Zealand in July was titled “Constructions of Reflective Practice in Dispute Resolution”. This builds upon a paper that Sue presented at the 2014 National Mediation Conference.

The research project

Sue’s project is motivated by a curiosity about what FDRPs understand to be reflective practice. This focus on practitioner views is consistent with Sue’s preference for a ground up approach to her research. Sue is interviewing FDRPs on the Sunshine Coast about their understanding of reflection and the place that reflection has in their practice.

So far, Sue has found that the practitioners have diverse perspectives and practices. Practitioners do not appear to be familiar with literature about reflection or models of reflection.When asked whether it is important that they be supported to engage with literature about reflection, Sue noted the realities of practice and her belief that the practitioner experience should be a touchstone in the development of recommendations.

The planned outcome of the research is the development of a model for reflection that practitioners will be able to use within their practice context, and which supports high quality critical reflection. The model will be informed by the literature about critical reflection as well as the practitioners’ insights gained through Sue’s empirical work.

What is already known about reflection

Critical reflection is an important activity in dispute resolution practitioner practice, as it moderates and informs decisions regarding:

• neutrality and independence;
• unconcious bias;
• lack of neutrality;
• dealing with prejudices;
• cultural sensitivity;
• other ethical dilemmas;
• looking back on self; and
• taking a broad focus upon social structures and processes.

Reflection is a well established professional activity in many professions, who have developed standards and models to guide practitioners to be reflective. It is the activity that assists professionals to perform the artistry of practice.

Reflection is not mentioned in the National Mediator Accreditation Standards, but could be viewed as a “meta-competence.” A mediator specific model of reflection that builds upon what is already known from existing models and approaches in other professions, as well as the vast literature about reflection, will be a valuable contribution to the field.