I recently attended the Australasian Law Teacher’s Association Conference (ALTA) hosted by the Victoria University of Wellington, in New Zealand. This is the first of a series of posts about dispute resolution research that was presented at the conference.

Dr Grant Morris

Dr Grant Morris is a Senior Lecturer at the Victoria University of Wellington’s School of Law. Grant’s dispute resolution related
research is in the negotiation and mediation spheres, and is no doubt influenced by his interests in legal history, education and law and literature. In 2013 he published an article “Towards a history of mediation in New Zealand’s legal system” (2013) 24 Australasian Dispute Resolution Journal pp 86-101.

The research project

The work that Grant presented at the ALTA conference is an empirical study jointly funded by LEADR and VUW. The focus is commercial mediation. Grant chose this area of mediation because it is the only truly private mediation market in New Zealand. Other markets (such as family and employment law mediation) are controlled by the state through statutory or funding regimes. That control influences whether and how mediators, lawyers and parties engage with the process and one another.

The question that inspired part two of Grant’s four stage empirical study is whether commercial mediators are right when they perceive lawyers to be a barrier to mediation. Grant took this anecdote and his research tested it with empirical evidence. The project is being rolled out in four stages, gathering data from mediators, lawyers, parties (actual and potential) and the courts. Grant presented his findings from his survey and interviews of commercial mediators at the 2015 ‘kon gres in Auckland and presented his report to the Wellington Chapter of the Resolution Institute.

Findings from commercial lawyers

Grant’s ALTA presentation focused upon the findings from his surveys and follow up interviews of commercial lawyers in New Zealand. The report from this stage of the study was published in June 2016. He summarised his conclusions:

• Commercial lawyers know about mediation;
• Commercial lawyers are generally supportive of mediation, but on their own terms;
• Commercial lawyers do not support the idea of mandatory mediation (New Zealand courts do not have power to order litigating parties to attend mediation in commercial matters);
• Commercial lawyers have an overwhelming belief that they are contributing positively to the process and do not undermine mediation;
• Clients are believed to have limited knowledge about mediation and to rely upon their lawyers’ recommendations;
• Commercial lawyers have a gatekeeper role in relation to commercial mediation;
• The main reason for commercial lawyers recommending mediation is that they believe it is cheaper than litigation;
• Commercial lawyers have a preference for legally trained mediators with experience and reputation as lawyers (they should understand basic legal principles and how commerce works);
• Commercial lawyers report high mediation settlement rates and high overall quality of mediators; and
• Commercial lawyers are generally happy with the standard of commercial mediators in New Zealand.

By comparison, the mediators who were interviewed for the study had different views of lawyers depending upon whether they were “in demand” or struggling to find commercial mediation work. In demand mediators were generally happy with the market, whereas those struggling to secure work were unhappy.

The next stage of the research project

Part 3 of the project will involve a survey of users and potential users. The data from lawyers reveals the potential for better party knowledge about commercial mediation. At the moment, it appears that many parties only know what their lawyer has told them about commercial mediation. The user voice is of obvious significance in building a picture of the commercial mediation market.

Grant was asked how he will be recruiting clients and potential clients to participate in part 3 of his project. Recruitment of users to empirical dispute resolution research is often challenging. Grant is in the process of deciding upon the best way to engage users and plans to focus first on the in house context. In house lawyers are both lawyers and users, so this may be a useful first step in obtaining user views.

Grant will be making another presentation in relation to his project at the DR Research Forum at the National Mediation Conference on the Gold Coast on Thursday 15th September 2016.

Susan Armstrong recently posted about the value of research in family dispute resolution. She pointed out the benefits of research led practice.  I also advocate this approach but am researching the context of conflict in strata title (multi-owned housing) and the best ways to deal with disputes where parties live in close proximity and share assets. My research focusses particularly on the development growth in apartment towers, medium density townhouses and master planned estates.  Master planned estates often include shared assets such as a country club with pool and tennis courts.  These developments are growing in inner suburbs  in infill sites and in the outer suburbs where there may be large amounts of detached housing surrounded by medium density townhouses.

Conflict arising in apartment buildings, medium-density housing and master planned estates is an important issue as strata title developments become more prevalent in Australia. The research is also important as conflict can impact negatively on the experience of residents in these strata developments. In Victoria, the Owners Corporations Act 2006 (Vic) (‘OC Act’) provides for a dispute resolution scheme for conflicts arising in strata developments. A recent co-written article will appear soon in the Adelaide Law Review describing our research into dispute resolution under the OC Act, and in particular into the effectiveness of the model rules for dispute resolution provided in the associated regulations. The research, which was conducted in Victoria in 2011, gathered data from a range of key stakeholders in owners corporations, including 34 strata managers of owners corporations. This article reports on the range of conflicts experienced by the strata managers who participated in the study. Analysis of the data provided by the strata managers shows that difficulties with conflict and the model rules for dispute resolution under the OC Act were most evident in small and large developments. The participants most satisfied with the model rules were managers in medium-sized owners corporations. Whilst a majority of managers used the model rules, over a third used their own informal rules. These findings lead us to argue that there is a need for differentiated rules for dispute resolution that are dependent upon the size of the development. Additionally, we suggest that further research is needed into the informal rules applied by a significant proportion of managers to ascertain their effectiveness and to provide owners corporations with added choice in dispute resolution.

Given a recent review into the OC Act in Victoria we hope our research will asset in reform of the legislation. I am presenting on an associated issue at the Mediation Conference in September where I will explore what further research in this area might look like to engage OC residents in better dispute resolution design.

I have this week been attending the biannual Australian Institute of Family Studies (AIFS) Conference in Melbourne. The focus of the conference is on translating research evidence into policy and practice change. It has made me reflect on existing research bases about dispute resolution in the area with which I am most familiar: family dispute resolution (FDR) in the family law sector, and whether we sufficiently adopt an evidence based and effective approach in designing, implementing and translating research about dispute resolution .

We actually have a lot of evidence about family dispute resolution: much of it has been gathered by AIFS as part its evaluation of the impact of family law reforms made in 2006, and subsequent evaluations of the family law system.  Non-adversarial dispute resolution is now deeply embedded in the family legal system as the primary way to resolve differences following separation. AIFS research has demonstrated a lot of things about resolving disputes following separation including:

• Most (80% +) people who separate work out problems themselves, without much assistance from professionals or services;
• Those people who need assistance from professionals often have a history of domestic violence (70% +), as well as complex profiles which include the co-occurrence of mental health problems, disability, substance abuse and socio economic disadvantage;
• Satisfaction levels of people who use different dispute resolution mechanisms (lawyer negotiation, court, mediation) is often higher for mediation / family dispute resolution;
• Programs like Coordinated Family Dispute Resolution (CFDR), developed by Women’s Legal Services Qld and piloted in 5 locations across Australia, to support people with histories of domestic violence safely participate in FDR can achieve safer outcomes for parties, and facilitate participation and ultimately self determination by parties. The AIFS evaluation concluded that this program was at the ‘cutting edge’ of family law practice, not only because of it’s innovative pre-mediation processes to inform and support parties to effectively and safely participate in FDR, but because of the multi-disciplinary, multi-agency & professional collaborative case management of the CFDR cases.

However, the good results from this pilot did not mean CFDR was rolled out across the family law sector, despite that some women and children continue to vulnerable to the significant effects of violence following separation, and the failings of existing dispute resolution processes to address this need.

It seems to me that even where we have good evidence, we need to have better strategies as researchers to ensure that good ideas are more often translated into policy and practice.  The AIFS conference has demonstrated to me that advocacy and persuasive arguments are not enough, but that DR professionals (many of us lawyers) need to think strategically about how to provide evidence in a digestable and compelling form so that its chances of being adopted by policy and decision makers are enhanced. As DR researchers we need to think about:

• Embedding research in every new DR initiative we adopt or are involved in, so that from day one, we are collecting appropriate evidence of outcomes and what works and doesn’t and why;
• Be more outcomes focused – but think very carefully about what constitutes outcomes, and how do we gather data of the more subtle outcomes;
• Identify the exiting relevant research and data, preferably locating systematic reviews of such evidence which synthesise the learnings and outcomes where this exists. This is not usual practice with DR research – so how do we initiate systematic reviews, or at least shape our existing research to ensure it might inform such reviews?
• Engage with the evaluation and implementation science that charts how best to translate good ideas into practice and how to measure what works and what doesn’t;
• Consider the implications of research findings for practice, and consider how we might translate findings into policy-usable evidence briefs, rather than long reports;
• Ensure we engage and collaborate with researchers from other disciplines, and with each other, and appreciate the power and insights that come from the collective and from  thinking different to our own.

Obviously the translation of good ideas is not all about the evidence. It is often serendipity, personality and politics that play just as significant a role. But unless we are ready with the evidence in ways policy makers can grasp, our good ideas may not make the difference they ought to.

About Alysoun

I am an off-campus PhD candidate at the University of Newcastle – having just moved from Monash University.  I am also a Director and Fellow of Resolution Institute, and was the national vice-president of IAMA before its integration with LEADR.  I am an ADR practitioner and trainer, especially mediation training, and a Senior Mediator Member of the ACT Civil and Administrative Tribunal (having designed the mediation program that ACAT uses), and am on the mediator panels for the ACT Supreme Court and for the Arts Law Centre of Australia.  I am also a member of the ADR Advisory Council (ADRAC), of the Law and Society Association (USA), and of the American Bar Association Task Force on Research into Mediator Techniques.  Prior to entering the world of ADR, I worked in various public service positions, including as a senior policy advisor on illicit drugs, advising the then ACT Chief Minister; in that capacity, I conducted an extensive international consultation process that informed the ACT Government’s proposal for a trial of medically prescribed heroin.  I live on a mountain property in a small, remote community in NSW, where I am the Training Officer for, and an active member of, the local fire brigade.  My son lives and works in Seattle (USA), and I have immediate family in Sydney, and in Switzerland. 

Thesis Research Project

My research topic arose from my mediation practice and my training of mediators: what is it that makes some mediators so much better, or more effective, than others?  I am concentrating my research on review and analysis of existing empirical studies of mediation and of mediator techniques, and have been very fortunate to have access to a compilation of almost 90 reports from such studies that was pulled together by the ABA Task Force on Research into Mediator Techniques.   I am constantly updating and rewriting my research questions, but, in essence, they are:

1. What is known about mediator influence over participant behaviour and participant perceptions, including perceptions of mediation effectiveness?

2. What is known about what mediators actually do in mediation that is so influential?

3. How can mediator behaviour and levels of influence be effectively measured and analysed?

4. What differences might it make to existing theories about mediation, existing mediator practices, and existing mediator training regimes if specific mediator behaviours (rather than models of practice, or styles and approaches) were found to be key predictors of mediation effectiveness?

What is most exciting for me about my research?

I am thoroughly enjoying learning about mediation research, meeting ADR researchers (in Australia and overseas), and gaining insight into, and understanding about, the characteristics of very effective mediators. I am currently working with a US academic on a report to be presented by the ABA Task Force, and that is certainly an exciting project.  Last year, I attended a compulsory seminar on the philosophy of law and that activated every curiosity neuron in my brain, which is always an exciting event; however, the most exciting aspect of my research has been learning about the unfamiliar world of academic research: its social norms, its language and its rules.  It has been something of a cross-cultural experience for me. 

What challenges have I experienced with my research?

It seems to me that everything I have done around this research project has been a challenge.  For example, I have had to learn how to turn ideas into formal research questions; how to write in an academic style; how to consistently apply strict citation styles.  I have also had to master some of the infinite capacities of the internet so my off-campus attendance is neither isolating nor an obstacle.
While learning how to be an academic researcher has been exciting for me, it has also been a challenge.  Although I have conducted many graduate and post-graduate ADR courses at universities, these have always been in the form of 3 or 5 day intensives, rather than extended, regular university attendance.   Becoming an academic researcher is quite different from parachuting in for an intensive and then jumping back out.

Where would I like to go after I finish my research project?

Once this project is completed, I would like to progress to empirical study of mediator behaviour to identify, or confirm, what very good mediators actually do that makes them so much better.  Some commentators have referred to the ‘black box’ of mediation*, and I would like to see that dark, mysterious container opened so researchers can properly study what actually happens in a mediation, and mediators can use accessible research findings to improve their practice techniques.
On the other hand, my family owns a very small, mediaeval house in a perched village in Provence (built in around 1100AD), and I would really enjoy some time on its balcony, listening to the bees in the lavender, the church bells in the distance, and the rhythms of local greetings.   

* For example, see: L. B. Bingham, ‘Transformative Mediation at the United States Postal Service’ (2012) 5 Negotiation and Conflict Management Research, p 363; L. Charkoudian, ‘Just My Style: The Practical, Ethical, and Empirical Dangers of the Lack of Consensus about Definitions of Mediation Styles’ (2012) 5 Negotiation and Conflict Management Research, pp 371 and 380; J. A. Wall, Jr, and S. Chan-Serafin, ‘Processes in Civil Case Mediations’ (2009) 26 Conflict Resolution Quarterly, p 262. 

We’ve received the following Call for Abstracts  from the ASIL Dispute Resolution Interest Group about the Yale Law School Center for the Study of Private Law Junior Scholars Workshop:

The American Society of International Law’s Dispute Resolution Interest Group and Yale Law School’s Center for the Study of Private Law are hosting a workshop for junior scholars. The workshop will be a safe space in which aspiring academics, post-docs, doctoral students, fellows, VAPs, other non-tenure-track academics, and pre-tenure professors can get feedback through group discussion on academic works in progress in international dispute resolution. Authors will not give formal presentations of their work. Rather, each accepted paper will be assigned a discussant, who will briefly introduce the paper, provide feedback to the author, and lead a discussion among participants. This format permits lively discussion of ideas and writings that may be inchoate or not yet fully developed. Discussants may include other junior academics at Yale and other authors participating in the workshop.

The workshop will be held at Yale Law School on the afternoon of Friday, October 28, 2016. All participants will be expected to attend the entire workshop and to be prepared to comment on the other papers, up to a maximum of three. We are unfortunately unable to fund travel but will host a dinner in the evening.

500-700 word abstracts may be submitted by midnight Eastern Time, July 15, 2016 to this folder: https://www.dropbox.com/request/weafBJW4I7tI2TEDu4Af. (A Dropbox account is not necessary to submit documents.) Any topic related to international dispute resolution will be considered. Submissions must be works in progress and should not have been submitted for publication. Abstracts will be reviewed by ASIL Dispute Resolution Interest Group Co-chairs Perry Bechky and Christina Hioureas together with Sadie Blanchard of the Center for the Study of Private Law.

The authors whose proposals are chosen will be informed by August 15th, 2016. All participants must submit a substantial work in progress by October 7, 2016, which will be circulated in advance of the workshop to registered attendees. It is expected that this work will consist of a working draft paper at least 20 pages long. Participants whose drafts are longer than 30 pages will be asked to focus the attention of the discussants and other participants on key excerpts.

Please direct any questions to sadie.blanchard@yale.edu.

Apart from obvious issues such as language and those associated with being present in an unfamiliar territory, a conflict resolution practitioner must be sensitive to cultural issues relating to the ‘way of doing things around here’ and the extent to which the conflict is embedded in cultural ways of knowing.

A conflict resolution practitioner needs to be ‘culturally aware’ of, and ‘culturally sensitive’ to, the issues involved in the conflict including transportability and applicability of culturally distinct models of conflict resolution to a culturally constructed conflict. An awareness of, and sensitivity to, cultural issues would make the conflict resolution practitioner culturally competent, but the conflict resolution practitioner must also be culturally fluent.

Cultural fluency extends beyond both cultural sensitivity and awareness. It requires an awareness of one’s own cultural biases, assumptions, prejudices and stereotypes, and how those might impact on the conflict resolution process. Practitioners intervening in conflict situations must be aware of how their motives, actions, and expectations are culturally engendered and affect the conflict resolution process and the outcome.

Intervention must also include consideration of the ways in which culture becomes embedded in conflict and is politicised. The ability of the conflict resolution practitioner to use various techniques of intervention and to be creative is crucial to the resolution of cross-cultural conflicts. Intervening in cross-cultural conflict situations could be challenging because of the diversity and complexity of issues, but it is clear that intervention requires that conflict resolution practitioners be flexible, creative and fluent.

“Construcción del puente sobre el río Almonte” By Yeza (Own work) [Public domain], via Wikimedia Commons

You are welcome to share your experience as a third party in a conflict/dispute involving cultural issues including approach, skills and lessons learned.

I’ve just spent the past 4 days in a whirlwind of ideas and conversations at the American Law and Society Association annual meeting in New Orleans. (You can follow the fascinating Twitter feed for the conference Here.) Three ADR Research Network members presented papers at the conference: Professor Rachael Field from Bond University, Professor Tania Sourdin, Dean of Newcastle Law School and me. Both Tania and I tweeted prolifically at the conference.

There were lots of wonderful papers about dispute resolution, judging, case management and therapeutic and procedural justice. The conference often had 12 parallel sessions running, with papers each plus discussants, from 8.15am-5pm for 4 days straight. I have a strong case of ideas-overload right now.

I think what I love the most about huge conferences like this one are the conversations that take place outside and around the formal paper sessions. It is there we are able to make real connections with researchers in other jurisdictions and think about how developments in other legal systems might reveal truths about our own legal system.

Over a very nice glass of vinho verde, I was having such a conversation with Dr Bridgette Toy-Cronin, Director of the Legal Issues Centre at the University of Otago in New Zealand and Dr Karni Perlman of Bar Ilan University on Israel. We were comparing civil justice reforms in our countries and methods used by governments  to streamline litigation and increase settlements before trial. Sometimes parliaments and courts attempt to de-legalise disputes by banning lawyers or forcing parties to appear unrepresented in litigation or other dispute resolution procedures. In Israel, and New Zealand recent legislation has required family law disputants to attend informal dispute resolution processes or litigation without their lawyers.

Both of these developments remind me of how, in Australia between 2006 and 2009, just after implementation of the major family law reforms making family dispute resolution (FDR) compulsory in many family law childrens’ disputes, guidelines banned lawyers from attending FDR seasons at Family Relationship Centres. Those guidelines very revised in 2009 and lawyers are now involved productively and cooperatively in FDR in a number of cases, including in special FDR process set up to support victims of family violence.

To my way of thinking, ousting lawyers from legal processes and discouraging legal representation is a very crude way of attempting to streamline dispute resolution procedures. Such measures are based upon the false assumption that the source of adversarialism is lawyers. Therefore, it is reasoned, having clients go ‘naked’ without their legal counsel, will facilitate a collaborative settlement. 

This assumption ignores several truths that are well-established by research. One ignored truth is that a key role that lawyers play in civil disputes is to manage the expectations of their clients. Lawyers often assist with reaching a settlement by encouraging their clients to accept an outcome that is closer to what the other side may see as reasonable, thus bringing the parties closer together. A second ignored truth is that legal advice plays an important protective role in ensuring that clients, in the absence of their lawyers, don’t bargain away rights that they will need. Legal advice helps prevent unjust settlements, especially where there is an imbalance of negotiating power. Forcing clients to negotiate or litigate without their lawyers may unreasonably disadvantage vulnerable parties.Edit

We’ll continue our conversation about the implications of cross-national civil justice reform that ejects lawyers from dispute resolution processes.  

  We hope to use the experiences of other jurisdictions to inform development of civil justice policy. Without the chance to meet and chat about our own work at the conference, we would never have made the connection between justice reforms in these three diverse jurisdictions. 

Can you help? Are there any examples of similar reforms in your jurisdiction or area of practice that reject the involvement of lawyers? Please post a comment here or email me.

About Rebecca

Rebecca Edwards is currently completing her PhD at La Trobe Law School, Bendigo. Rebecca has been employed on a sessional basis in the School of Law for the last 9 years teaching a large number and broad range of subjects including Dispute Resolution. Prior to this work, Rebecca practiced as a lawyer for over 10 years in rural and regional Australia, working predominantly for legal aid clients (both as a private solicitor and as an employee of Victoria Legal Aid), as well as a two year period working of the Kimberly Land Council as a Native Title Lawyer in Broome, WA, and a 3 month stretch as a volunteer legal analyst at the United Nations Criminal Tribunal for Rwanda based in Arusha, Tanzania. Rebecca now balances work and study with family life with her two primary school aged children, a number of board roles and the running of a small farm where the family raise small-scale free-range, grass-fed, ethically raised pork, lamb and beef and duck eggs.

Rebecca’s research

Consistent with its philosophy to support unrepresented litigants, in June 2009 the Victorian Civil and Administrative Tribunal (“VCAT”) implemented a pilot strategy in mandated mediations involving an unrepresented litigant and a mediator who is not a Tribunal member (known as a panel mediator). The strategy was to provide parties in these mediations with a cooling off period of two business days, enabling them to withdraw from a meditated agreement without penalty.

Through the use of electronic surveys of mediators and telephone interviews with disputants, Rebecca is attempting to discover whether VCAT’s innovation actually does provide support to unrepresented litigants. Her two main research questions are:

• whether the unusual and innovative provision of a cooling off period following a mediation is utilised by unrepresented disputants (i.e. do disputants actually seek advice about their mediated agreement subsequent to the mediation?)
• whether the provision of a cooling off period following a mediation empowers unrepresented disputants (i.e. regardless of whether disputants speak to anyone about the mediated outcome, do they feel better about the outcome knowing that they can withdraw from it without penalty for a certain period of time)

The research is currently at the stage of analysing the data with final write up expected later this year.

 Papers and presentations

Rebecca first presented a draft paper on her research at the ADR roundtable in Sydney in September 2016. A more up-to-date paper was presented at the Asia Pacific Mediation Forum’s Conference, in Lombok, Indonesia in February 2016. With luck and hard work, a solid draft of the thesis is expected to be completed by the end of this year.

UNSW Law is seeking expressions of interest from world leading researchers (Professors and Associate Professors) in a range of areas, including civil dispute resolution.

For full details, see:

http://www.law.unsw.edu.au/news/2016/05/unsw-law-seeks-expressions-interest-leading-researchers-private-law-corporate-and

The position description specifies a broad range of areas:

• Private law, in particular, tort law, contract law, equity, remedies and civil dispute resolution; and
• Corporate and commercial law.

I am happy to serve as a preliminary point of contact for readers of the blog.

Network member Becky Batagol recently wrote about her experience working as a research consultant for the Royal Commission into Family Violence. She makes some very interesting observations about the nature of the inquiry and the collaborative and constructive nature of the process.

You can read Becky’s reflections on the Monash University website.

Thanks for sharing your reflections Becky!

More about the outcomes of the inquiry and how dispute resolution was relevant was posted here earlier by Rachael Field.