Thank you to all the Dispute Resolution scholars who have expressed interest in participating in our Round Table in December 2016.

Our Call for Proposals closes today.

This is a reminder that attendance at the Round Table is only open to individuals who are contributing to the scholarly discussions by presenting a paper, or commentating and/or chairing a session.

If you want to join us in Hobart in December, you need to express interest in participation by today’s deadline! Email your EOI to adrresearchnetwork@gmail.com

Proposals will be assessed over the next few weeks and everyone who expressed interest in the Round Table will receive a reply by the end of June.

Paper presenters can expect to be assigned at least one chair/commentary responsibility.

By Hullwarren (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0) or GFDL (http://www.gnu.org/copyleft/fdl.html)%5D, via Wikimedia Commons

This post has been contributed by:

• Tamana Daqiq  BA.Psych, LLB, Masters in Islamic Studies, and
• Dr Helen McCue AM B.Ed, MHPEd, PhD (UNSW)

Both Tamana and Helen are Research Officers at the Law School of the University of Sydney.

Case Scenario

Mariam and her husband Abdul live in Australia and have been married for 13 years. They have three children aged between 6 and 12 years. In recent years there has been an increase in the conflict between Mariam and Abdul. Mariam is unhappy and exhausted from the conflict. She no longer wants to remain married to Abdul.  After speaking to Abdul she sees a lawyer and files an Application for Divorce in the Australian Family Court. Mariam is a practising Muslim and seeks the advice of her local Imam to obtain an Islamic divorce and resolve the issue of custody of the children.

 This scenario illustrates some of the issues that Muslim women face when they are seeking a divorce in Australia and demonstrates some aspects of the relationship between Australian family law and Islamic family law in the case of a divorce.

The Research Project

The Australian Family Law and Islamic Dispute Resolution Processes Project,  is a multi-method policy-based research project. The project, funded by the Australian Research Council and conducted by researchers from the Law Schools of Sydney University and Melbourne University, brings together expertise in family law and law and religion to examine the issue of how Australian family law should respond to Islamic community-based dispute resolution processes in relation to family law disputes.

Research Question

The project examines the question of how the Australia’s family law system can best respond to these Islamic community processes, and how, as in the case of Mariam in the above scenario, this response can support Muslim women. The project seeks to provide reliable empirical evidence for evaluating the responses to these processes and how these might support Muslim women. At its completion the project will propose, based on rigorous empirical and normative research, the best response from a liberal legal system such as Australia’s to these Islamic community processes.

Existing Literature

The literature informs us that Australia is home to a variety of cultural and religious norms, laws, practices and communities which for the Muslim community includes often informal and unenforceable community-based dispute resolution processes for dealing with family conflict. In recent years government initiatives have emerged that are designed to enhance access to the legal system’s services for people from culturally and linguistically diverse backgrounds. Despite this, little is presently known about the experiences of Muslim women who use community processes to resolve family disputes, or about how the Australian family law system might go about responding to these processes in a way that supports Muslim women. While there is a growing scholarship on the issue outside Australia, scholarship on Islamic decision-makers within Australia is limited. To date, the only relevant empirical research in Australia which documents how Australian Muslims deal with family disputes can be found in a ground breaking book by Dr Ghena Krayem titled Islamic Family Law in Australia: To Recognise or Not To Recognise published in 2014.

Research Method

This research project, Australian Family Law and Islamic Dispute Resolution Processes Project,   will be conducted in two stages. The first stage, led by Professor Helen Rhoades and Dr Ghena Krayem, involves interviews with relevant stakeholders including individual Muslim men and women and community leaders, Imams, community workers and other services providers from Islamic organisations as well as family lawyers and family dispute resolution practitioners.  The second stage, led by Professor Carolyn Evans and Dr Farrah Ahmed, will involve an analysis of the Stage 1 data to engage in a normative examination of how Australian family law should respond to Islamic community-based dispute resolution processes in relation to family law disputes.  The research results will be available through our web page.

About Resolution Resources

Emma-May Litchfield and Danielle Hutchinson are the co-founders and directors of the consulting firm Resolution Resources Australia, who provide dispute resolution services and solutions nationally and internationally. Together they work as dispute resolution advisors, providers and educators.

Resolution Resources provides a range of services in dispute resolution and conflict management, including:

• Mediation
• Facilitation
• Conflict Coaching
• Professional Development
• Research and Development of Dispute Systems
• Conflict Auditing
• Evidence-based practice and data-driven decision-making

For more information about Resolution Resources see: www.resolutionresources.com.au

Emma-May Litchfield and Danielle Hutchinson

Danielle Hutchinson is an Australian Lawyer with a special interest in dispute resolution within education settings. She is also an Academic at the University of Melbourne and RMIT University. In 2014 she received an award from the University of Melbourne in recognition of her work assisting university staff to resolve workplace disputes. At Melbourne she teaches the principles of evidence-based practice and collaborative practice across several Masters Programs within the Melbourne Graduate School of Education. Danielle has published in the areas of Assessment, the use of Large Scale Testing and the application of Psychometrics in the development of Professional Standards. Danielle is completing her PhD in Law at RMIT and teaches Commercial Law within the School of Business and Law. Danielle will be developing a new course for RMIT in International Commercial Law for undergraduate students who are taking their minor in law. At present, she sits on the both the Executive and Academic Committees of The Global Pound Conference Series 2016-17.

Danielle’s published research can be accessed here. Her PhD project investigates the identification of measures for the evaluation of ‘disputant voice’ in the selection of and participation in Dispute Resolution processes within a commercial context.

Emma-May Litchfield is an experienced mediator, facilitator and coach with a special interest in the Education and Community sectors. Her expertise lies in supporting parties to restore, develop and enhance the relationships that are vital for their professional or personal success. She is a member of the Resolution Institute and an NMAS accredited mediator. She was a coach of the University of New South Wales team for the 2015 International CDRC Mediation Competition in Vienna. She has been an assistant facilitator for undergraduate and post-graduate units in Principled Negotiation at the University of New South Wales. She has also been an adjudicator for the UNSW Principled Negotiation competition. At present, she sits on the both the Executive and Academic Committees of The Global Pound Conference Series 2016-17.

Emma-May has a Bachelor of Arts (Music Business) and
 Graduate Diploma of Education. She is soon to undertake her Masters by research work with the goal of building her academic profile in Dispute Resolution. Her Masters project will investigate the content and pedagogical practices of mediation trainers in NSW and Victoria. She is also working on a co-authored paper examining the inter-professional conversation between lawyers and dispute resolution professionals.

Links to Global Pound Conference

The Global Pound Conference Series is a large-scale project investigating the efficiency of adjudicative and non-adjudicative dispute resolution mechanisms globally, from the perspective of the expectations and preferences of four major stakeholder groups: users, advisors, providers, and influencers (i.e. researchers and regulators). The project aims to initiate a global dialogue about dispute resolution in civil and commercial matters, with the data collected to serve as basis for future reform initiatives.

The Global Pound Conference Series is arguably the biggest research project that has ever been undertaken in the history of Dispute Resolution. Emma-May and Danielle were integral in the development of the Core Questions, and will be actively involved in the analysis of the data, including the pioneering of innovative analysis techniques drawn from the field of psychometrics.

Emma-May and Danielle facilitated the Core Questions at the GPC Singapore, in March 2016.

ADR Research Network Participation

Emma-May and Danielle are both members of the Australian Dispute Resolution Research Network and are submitting abstracts to the ADRRN 2016 Roundtable. They look forward to participating in the annual network face to face gathering for the first time.

Don’t forget that expressions of interest to participate in our 2016 Roundtable are due by the end of May!

About Dalma

Dr Dalma R Demeter is an Assistant Professor in Law at the University of Canberra. She is also an international arbitrator, and a legal practitioner for almost twenty years. Dalma has a truly international background encompassing both civil law and common law education and practice, with law degrees from leading European and US universities and Australian qualifications in higher education. She is teaching and researching in international dispute resolution, arbitration, international sales and trade law, and mooting. She is also coaching and arbitrating for the Willem C. Vis International Commercial Arbitration Moot in both Hong Kong and Vienna. Her teaching is based on extensive research, and her teaching excellence has been recognised by several awards both locally and internationally. She is supervising doctoral research in dispute resolution and trade law, and she has recently initiated the establishment of a Graduate certificate in dispute resolution program at UC, expected to be launched in 2017.

Combining teaching with practice, Dalma is also an arbitrator in international commercial disputes and a partner at the Australasian Dispute Resolution Centre. She is a member of the Executive Committee of the UNCITRAL National Coordination Committee for Australia (UNCCA), of the Law Council of Australia International Division, of the ACT Law Society International Lawyers’ Committee, and of numerous arbitral institutions globally. She is also a contributor to law reform inquiries in private international law, alternative dispute resolution and international trade law. She is fluent in English, Hungarian and Romanian.

Dalma’s research

Dalma’s current research focuses on improving access to and efficiency in dispute resolution more broadly. Throughout 2016, Dalma is researching internationally on a number of different projects.

Global Pound Conference Series

Dalma serves on the Academic Review Committee for the Global Pound Conference Series. The Global Pound Conference Series is a large-scale project investigating the efficiency of adjudicative and non-adjudicative dispute resolution mechanisms globally from the perspective of the expectations and preferences of four major stakeholder groups: users, advisors, providers, and influencers (i.e. researchers and regulators). The project aims to initiate a global dialogue about dispute resolution in civil and commercial matters, with the data collected to serve as basis for future reform initiatives.

Legal harmonisation works of the UNCITRAL in Vienna. 

Dalma is contributing to the UNCITRAL Secretariat’s work on the development of a conciliation convention for the enforcement of settlement agreements. She is also providing input into the Secretariat’s recommendations with regard to the EU initiative towards establishing an investment court, impacting on the field of international arbitration more broadly.

Max Planck Institute for International, European, Regulatory and Procedural Law in Luxembourg

Dalma will be developing a future project to look into multicultural influences affecting choices and efficiency of dispute resolution processes. The project will serve as basis for developing a complex dispute profiling tool to assist parties in a case-by-case matching of a given dispute with the most suitable dispute resolution mechanism, as well as the characteristics and qualifications of the most suitable third party neutral. The scope of the proposed tool is for dispute resolution mechanisms to achieve the parties’ desired outcome with the least disruption, time and money spent on procedural arguments, improving access to justice through procedural efficiency.

UN Trade Law Commission in New York

Dalma was invited to present her access to justice initiatives to delegates of the UN Trade Law Commission as part of a Rule of Law panel organised in July 2016 in New York. The Commission works towards practical measures to facilitate access to justice in the commercial law context, in particular by micro-, small- and medium-sized enterprises.

Future focus

Dalma is interested in collaborations with other Australian or international researchers and educators of dispute resolution, and is happy to be contacted with questions about any of the projects she is currently involved in. Her preferred contact email is dalma.demeter@canberra.edu.au

About Frances

Frances Richards, BComm, LLM is the Principal of Frances Richards & Associates and an Adjunct Lecturer at the University of Notre Dame, Sydney Campus.

Frances is a solicitor and mediator specialising in dispute resolution in environmental planning law. She also teaches legal research and writing and is enrolled in the Graduate Certificate of University Teaching (GCUT) course at the University of Notre Dame Australia .

Frances first became interested in alternative dispute resolution when, after representing clients in the courts for many years, she attended a mediation course run by IAMA (now the Resolution Institute).  The potential of mediation for conflicts involving neighbours and local government was immediately apparent to her.

Frances’ research

Frances researches the use of mediation by local government, particularly conflicts between neighbours. In 2015 Frances brought her work in progress to the ADR Research Network Roundtable titled “Alternative Dispute Resolution(ADR): Opportunities for Councils“. She is soon to publish an article in the (2016) 21(2) Local Government Law Journal. Frances said about her experience at the ADR Research Network Forum:

I attended the ADR Research Network Roundtable in 2015 and was impressed by the knowledge of the other attendees and the collaborative and supportive nature of the Roundtable. I encourage other researchers to consider attending.

(In case you have missed it, we are currently calling for proposals for our 2016 forum).

Frances is currently researching the potential for the application of ADR to disputes over unpaid rates. She is encouraged by the research by Tania Sourdin into the use of ADR by the Australian Tax Office in disputes over taxes.

Sourdin, T. “Evaluating Alternative Dispute Resolution (ADR) in Disputes about Taxation” (2015) 34 (1) The Arbitrator and Mediator p19.

The research by Elize G Ufkes, Ellen Giebels, Sabine Offen and Karen Van der Zee into the effectiveness of mediation in neighbour to neighbour conflicts has also influenced Frances. She would like to apply their research methodology to neighbour conflicts in Australia.

Elize G Ufkes, Ellen Giebels, Sabine Offen, Karen Van der Zee “The effectiveness of a mediation program in symmetrical versus asymmetrical neighbour to neighbour conflicts” (2011) 23(4), International Journal of Conflict Management pp440 -457.

Frances sees potential for educating the community about alternative dispute resolution and for the use of technology in dispute resolution in the community. She would like to explore research in these areas in the future.

About John 

John Woodward is a PhD Candidate at UNSW. He was a solicitor in private practice as a litigation lawyer for 25 years. He is also an arbitrator for the Local Court of NSW and a mediator.  Daily contact with commercial and general litigation both as a legal representative and an arbitrator have brought him face to face in a very practical way with the anomalies of adversarialism and its shortcomings as a way to end disputes.  John became increasingly aware of the benefits of ADR and became an enthusiastic user of mediation, which his clients invariably found a much better process than the ordeal of having to go to court.  After having become accredited as a mediator, John became aware that what lawyers do in court-connected mediations “is a long way short of what real ADR is and has to offer.”  Reflecting on that led John to wonder whether lawyers are so culturally attuned to contest and rivalry that they are simply incapable of adjusting to the role of embracing the values necessary to assist clients in mediations and other ADR processes.  John suspects that court-connected mediation in NSW suffers from the same difficulties as those identified in other schemes.

John’s research

John’s research question is how lawyers are responding to mediation conducted in the shadow of the law, that is, where litigation is either under way or is an imminent threat to the disputing parties.  It seeks, through a qualitative method of semi structured interviews of lawyers and mediators, to establish how lawyers see themselves and their role in mediation.

• How do they identify as lawyers?
• What is their professional culture?
• Is it compatible with the values and beliefs of ADR?
• How do they reconcile the paradox of legality required by the courts with the freedom to negotiate offered by mediation?

If John’s research is communicated effectively to the legal profession, it has the potential to improve the quality of mediations in which lawyers participate (either as mediators or client representatives) and improve their understanding of dispute resolution.

The most serious challenge to the work so far has been confining the work to a manageable topic. John has realised that he could spend a life time and do many doctorates on topics related to court-connected dispute resolution. He also found some challenge in formulating a research framework within which to work.  Having the experience of many years of legal practice can be both beneficial as well as obstructive.  On one hand, the experience promotes a passion for the subject because he knows how much this work really matters and how it affects people’s lives at an intensely practical level. On the other hand, legal practice does not provide any assistance to become an academic researcher and acquiring those skills can be demanding.  John’s immediate challenge now is to obtain ethics approval, a task which he has almost completed.

John’s publications so far

John shared his work with the ADR Research Network Roundtable in 2015, with his work in progress titled “The Effect of Legal Professional Culture on the Integrity of Court-connected ADR”. John plans to participate in the 2016 ADRRN Roundtable.

He has also published three journal articles over the past few years.

• John Woodward, “Court-connected dispute resolution: whose interests are being served?” (2014) 25 Australasian Dispute Resolution Journal 159
• John Woodward, “Tipping the Scales: to what extent does the presence of power imbalances detract from the efficacy of principled negotiation?” (2015) 26 Australasian Dispute Resolution Journal 86,
• John Woodward, “Encouraging dialogue between large and diverse groups: the emerging field of facilitation” (2016) 27 Australasian Dispute Resolution Journal 58 (which includes a case study of the topical issue of gun control in the US).

John’s future plans

When asked where he would like to take his work post-PhD, John reflected that one of the great things about doing a PhD is that you are already there before you finish.  He really enjoys the research – so much so that he thinks he would like to continue researching.  He also enjoys writing so is hopeful that some of his work may find its way into a book at some time in the future.

This post is about the value of sharing research “failures” as a core part of the dispute resolution community of practice.

Invisibility of failure in academic culture

In the competitive environment of academia, there is an unrealistic focus upon extrinsic measures of success such as tenure, promotion, publication, funding grants or awards. This belies the fact that in order to build expertise, knowledge, and excellence, many failed or abandoned endeavours will form part of our journey. The veneer of flawless achievement paints an unrealistic and unhelpful picture for emerging researchers and others who have much to offer should they be nurtured in the research environment. Some academics have published “CVs of failures” as a way of addressing the unrealistic portrayal of academic life. For example, Melanie Stefan from the University of Edinburgh whose idea was adopted by Professor Johannes Haushofer of Princeton University.

“Publish or perish” can be a preoccupation in the life of an academic researcher, with publication of research in peer reviewed journals being valued above other means of distributing the knowledge built through research endeavour. It is recognised that journals have a bias towards publication of positive research results and non-publication of null results. Recent attention has been paid to the fact that this trend skews the knowledge attained in the field and calls have been made to publish negative results. The validity of social science research with low response rates is often questioned, and also makes it difficult for such work to be published. In research involving questionnaires or surveys, “nonresponse bias” occurs where the missing data from potential participants who chose not to participate means that the data is skewed, and this is also a cause of criticism.

Some steps have been taken within research communities to address problems with publication bias. Journals have been created that focus exclusively on publishing negative, unexpected or controversial research results. Some researchers have sought to test how much of a problem low response rates are, as a small sample is not necessarily biased.

The value of methodological “failures”

An almost exclusive focus on publishing “successful” research means that only half (or perhaps even less) of the knowledge generated by the research community is made available. The result is that research methods that did not “succeed”, because the results were unexpected or the research method did not attract the response rates that it was designed to attract, are kept in the shadows. Future researchers miss out on the benefit of being informed to avoid repeating design faults. Sometimes research approaches that work in one setting do not translate well to another setting, and publishing details of failures enables challenges to be overcome. Sometimes disappointing participation rates are discussed in a defensive way within publications, where the author tries to justify the low response rather than sharing their reflections on how they might have done their research differently. Such reflection would be a way of supporting improved research design.

Like all aspects of research, methodologies are best designed with a background knowledge of existing literature. Many of the challenges of research can be managed by following advice (for example how to minimise nonresponse error) and by reading literature specifically related to research in a particular disciplinary area. For example, NADRAC’s ADR Research: a resource paper and Daniel Druckman’s Doing Research: Methods of Inquiry for Conflict Analysis are two useful resources in the dispute resolution field (but of course these are only two of many).

“Hot Air Balloon Shadow” By Dixonsej (Own work) [Public domain], via Wikimedia Commons

Bringing what didn’t work in dispute resolution research out of the shadow

I argue that it would be enormously beneficial to our field if we joined forces to gather data about the research projects that we abandoned, the research methods that failed, and the results that we haven’t published because we don’t think they tell a “good enough” story. This post is an invitation to share your stories.

To demonstrate the value of this proposal, I will share one of my own stories of research failure. It has been previously published as Appendix A “Lessons learnt from the original research design” of my PhD Thesis. Back in 2004 I embarked on a research planning process, and my first research design was to invite lawyers and their clients to participate in 20 minute telephone surveys about their experiences in a particular matter at mediation in the Supreme Court of Tasmania. I planned telephone surveys because I believed that asking for a short period of time, without needing to meet face to face, would be most attractive to potential participants. I was very interested to gather data about both lawyer and client perspectives, and my overall aim at the time was to conduct a programme evaluation.

An obvious challenge was identifying who should be invited to participate in the research. A letter was sent by the then Chief Justice to all Tasmanian legal practitioners informing them of the study, emphasising the court’s support, and encouraging them to participate. Information sheets and consent forms were distributed to lawyers by the Court by mailing them with the Notice of Mediation. The human research ethics committee required that the clients be approached through their lawyers. Lawyers were asked in a covering letter to forward their clients’ information sheet, consent form and a copy of the survey of legal practitioners to their client prior to the mediation. Consent forms could be handed to the mediator at the conclusion of the mediation or posted to the researcher, and mediators had spare copies of all materials on hand in the mediations. I met with each mediator to explain my research, and asked them to mention the research at the mediation and extend an invitation to participate. They all agreed to do so, but later reported that they frequently either forgot or failed to find an appropriate moment to raise the matter during the emotional upheaval during or the fatigue at the conclusion of mediation. Memoranda and articles in the Law Society’s magazine from both myself and the Registrar were published to try to boost participation rates. Ultimately I abandoned the research method as only 27 signed consent forms were received, representing less than 2% of the pool of potential participants over the relevant time period.

I redesigned my research aims and method. Information sheets and consent forms were emailed to potential participants, who were identified by the Registrar as being lawyers who practised in civil matters at the Court. I gathered data through face to face interviews of legal practitioners lasting around one hour. Interviews related to their mediation practice in the Supreme Court of Tasmania generally, not specific matters.

I concluded each interview with a question about whether the practitioner remembered receiving the documents about my original study and what they had done in response. The overwhelmingly common response was that the paperwork had gone straight into the rubbish bin and had not been sent to the client. Participation was a low priority compared to activities that would advance the client’s case. There was a reluctance from many lawyers to forward the material to their client. There was also some irritation at the volume of invitations that individual lawyers received. The sensitive and confidential nature of the information sought was also a deterrent to participation.

What I learnt from my “failed” research method included the following:

• Relying upon third parties to distribute invitations to participate in research can be risky, even when they are supportive of the research project. I might have been better to attend the court and approach potential participants myself (see Jill Howieson’s Local Court Mediation study).
• Mediation can be a stressful and emotionally draining process, and inviting participants to engage in research immediately after their mediation event is not optimal. Similarly, mediators may find it difficult to invite participation in research during a mediation event, as this distracts participants from their mediation experience.
• Lawyers are very protective of their clients’ wellbeing and can be reluctant to ask their clients to participate in research activity that (a) does not advance their case and/or (b) invites them to reflect upon their experiences or satisfaction with the service they have received.
• Where data is sought about individual cases rather than general experience, the frequency with which individuals will be invited to participate in the research should be considered, as multiple approaches can discourage engagement in research.
• Many professionals are overwhelmed with paperwork and telephone calls during their busy practice. They might be more receptive to a face to face interaction with another human being than participating in research by completing a form or telephone survey. They can be surprisingly generous with their time.
• Where possible, providing information about the research by electronic means such as attachments to an email and/or a link to a website (if ethics approval can be obtained for this approach) is likely to be less overwhelming for potential participants than hard copies.

How you can tell your story

I invite other dispute resolution researchers to share your stories of “failed” research methods in the comments section below. Please include:

• Some detail of the research design;
• In what way your research method “failed” to attract the response rate or results you wanted or expected, or why you abandoned it;
• What you learnt from the process and what lessons you want to share with current and future researchers.

I look forward to the valuable contribution that this sharing can make to our field.

From time to time people ask how they can become members of the Australian Dispute Resolution Research Network.

FUTURE REVIEW

We are an evolving network and at the 2016 Round Table in Hobart, time will be allocated to review our current approach and make some decisions about membership and organisational structure.

CURRENT APPROACH TO MEMBERSHIP

We don’t like hierarchies or unnecessary administration, so we don’t have any membership list or legal organisational framework. The way to become a member of the ADR Research Network is to subscribe to the blog at adrresearch.net. This is our primary means of communication. Although we do sometimes email people who have attended face to face meetings, we prefer to communicate via the blog so that all interested people can view it. Therefore it’s an “opt in” membership where you control whether you’re kept informed of network activity.

• Subscription will mean that every time a post is made on the blog you will receive a notification alert to your email address.
• Other ways to follow blog activity is through Facebook “ADR Research Network” and Twitter @ADRResearch, but engagement on these platforms is not necessary to keep track of blog activity.
• You are welcome to make a guest blog post and/or request to be added as a regular contributor who can post directly. These requests can be directed to our blog editor Becky Batagol

At each annual face to face gathering, some primary responsibilities are allocated to network members for the following year. The current responsibilities are:

• Chairs – Kathy Douglas and Jonathan Crowe
• Blog Editor – Becky Batagol
• Round Table Organisers – Olivia Rundle, Kate Curnow and Sue Douglas

We hope that this clarifies our approach to membership.

Please don’t forget that abstract proposals for the 2016 Round Table are due by the end of May!

Professor Jaswald W Salacuse has published an interesting article titled “The Effect of Advice on Negotiations: How Advisors Influence What Negotiators Do” in the April 2016 edition of the Negotiation Journal. There are some interesting observations made in the article that have relevance for researchers who are analysing negotiations.

Professor Salacuse observes that:

• Theoretical models of negotiation often overlook the significant role played by people who advise negotiators;
• Advisors might include family, friends, colleagues or professionals (including, but not limited to lawyers). They may or may not be invited or appointed to give advice to the negotiator to help them decide how to deal with their problem; and
• Advisors may give advice earnestly or casually, and either kind of advice can have dramatic consequences for the way that a dispute is managed.

He recommends that when examining a negotiation, as a reflective activity or a research analysis, the role and impact of advisors on the negotiation should be routinely and systematically incorporated into negotiation planning and/or the method of analysis. Negotiators should analyse their relationship with their own advisors as well as those of the other negotiating parties. Professor Salacuse’s use of role theory also provides a framework that professional advisors such as lawyers may find useful in articulating their advisory role and style to clients. Role theory differentiates between role prescriptions (external expectations of the advisor’s role), role performance (the advisor’s actual behaviour) and role conceptions (the advisor’s perspective of how they ought to perform their role). For researchers, failing to investigate the identity and influence of advisors over a negotiation process will produce an imperfect picture. Salacuse recommends that researchers ask questions that explore: the content of advice received in relation to a negotiation, the identity of advisors and their relationship with negotiators and other participants, relationship structures, roles played by negotiators and advisors (particularly prescription and performance), resources that advisors brought to the negotiation table, means of influence employed, nature of interactions during the negotiation, and the advisor’s style.

Some of the factors that will vary include the following:

• The degree of dependence upon the advisor’s expert “repeat player” knowledge (high dependence can make it difficult to reject advice);
• The importance of role prescription (a non-professional advisor will be less constrained by this than a professional advisor appointed specifically for the purpose of giving advice);
• Whether advice is sought because of the advisor’s expertise in substance or process, or to validate a fact, policy or intention;
• Whether an advisor’s participation in a negotiation event is “ornamental” (in the sense that they are there because of their reputational capital) either wholly or in part;
• Whether an advisor’s conduct and influence over the negotiation creates a separation between the negotiated outcome and the negotiator (which can bring the authenticity of the agreement into doubt);
• Whether the negotiator seeks advice primarily to validate their own opinion (for example, a family member or friend’s validating advice may be sought because the negotiator wants them to affirm their allegiance rather than form an independent critical opinion about the subject matter of the advice); and
• The degree of confidence that the negotiator has in the advisor’s technical competence, integrity, and loyalty, which will be strongly linked with the strength of the relationship between advisor and negotiator.

Professor Salacuse describes three structural models of the relationship between negotiator and advisor, that have some alignment with my (Dr Rundle’s) models of lawyer participation in mediation. He talks about the advisor as director who “tends to take control of the negotiating process, directing the negotiator on how to act to achieve success in the negotiation” (spokesperson). The advisor as servant responds to the client’s demands and “the client fully controls the negotiation and may limit the advisor’s participation to specific questions and issues” (any of the absent advisor, advisor observer or expert advisor). The advisor as partner describes the advisors and their clients conducting a negotiation as partners, where “the essence of any partnership is co-ownership and joint participation” (collaborative participant). Of the EU advisors surveyed for Salacuse’s research, 80% indicated a clear preference for a partnership relationship with the people they advised. Kathy Douglas and Becky Batagol’s research in VCAT mediation has shown some support for the collaborative approach to legal advice giving as has Allie Bailey’s research in Roundtable dispute management at Victorian Legal Aid. However, this model is neither traditional nor typical of lawyer client relationships generally.

The article canvasses a broad range of considerations that cannot be ignored if the dynamics of particular negotiations are to be understood properly. These influential factors need to be considered carefully when educating advisors (such as lawyers) and negotiators (anyone) about their choices and behaviours in negotiation settings. They provide a useful framework for reflection for professional advisors.

One final observation from my reading of the article is that Professor Salacuse’s research method was to administer a questionnaire to a group of advisors who he was training, which invited them to assess their own advising and communication style. This self-report of “typical” practice may be useful in gathering data about advisor’s role conceptions, to supplement other data about role prescriptions and/or behaviour. It might be a useful research tool for researchers who wish to learn more about lawyers’ perspectives of their role and practice in advising clients in relation to their disputes. The survey instrument is annexed to the article. I am interested in other researcher’s views about it (but of course all constructive comments on and contributions to this blog are always warmly welcomed).

There is a tendency for those dispute resolution professionals who work outside the family law field to think that family violence does not affect their work. However the recently released report of the Victorian Royal Commission into Family Violence, which was jurisdictionally unable to examine family mediation, shows that an understanding of the nature of family violence and an ability to identify and respond to cases of family violence is central to the work of dispute resolution practitioners in a number of diverse fields. We focus here on the recommendations which will affect the way in which a range of dispute resolution professionals will have an ongoing role in dealing with the consequences of family violence in our society.

Many of the recommendations and much of the report will be of interest to those in the broader Australian dispute resolution community.

The Royal Commission’s Report

On 30 March 2016 the Victorian Parliament tabled the report of the Royal Commission into Family Violence. The report represents the culmination of 13 months of work by Australia’s first ever Royal Commission into family violence. The Victorian government set up the Royal Commission to examine and evaluate strategies, frameworks, policies, programs and services and establish best practice for four areas – the prevention of family violence; early intervention; support for victims of family violence, particularly for women and children; and accountability for perpetrators of family violence. The Royal Commission was also asked to investigate means of ensuring systemic responses to family violence, investigate how government agencies and community organisations can better integrate and coordinate their efforts, and make recommendations on how best to evaluate and measure the success of strategies and programs put in place to stop family violence.

Although the report and recommendations are framed to apply to the state of Victoria, the findings are highly relevant to every State and Territory, which all face the difficult task of dealing with increasing reports of family violence. Many of the recommendations ask the Victorian government to liaise with the Commonwealth government and COAG (the Council of Australian Governments) to reform aspects of law and policy in other States and Territories and nationally to better protect the victims of family violence and ensure perpetrator accountability. COAG has also just released a report advising it on a national approach to reducing violence against women and their children.

Report Recommendations

The Royal Commission’s report contains 227 recommendations.  The Victorian government has committed to implementing all recommendations in the report, regardless of the cost. The Commission stated that its ‘recommendations are directed at improving the foundations of the current system, seizing opportunities to transform the way that we respond to family violence, and building the structures that will guide and oversee a long-term reform program that deals with all aspects of family violence’ ( p.14 Summary and Recommendations).

Key recommendations include:

• the establishment of local support and safety hubs to make it easier for victims to find help and gain access to a greater range of services
• new laws to ensure that privacy considerations do not trump victims’ safety—with a Central Information Point to funnel information about perpetrators to the Hubs
• an immediate funding boost to services that support victims and families, additional resources  for Aboriginal community initiatives and a dedicated funding stream for preventing family violence
• a ‘blitz’ to rehouse women and children forced to leave their homes, supported by expanded individual funding packages
• an expanded investigative capacity for police and mobile technology for front-line police, including a trial of body-worn cameras
• more specialist family violence courts that can deal with criminal, civil and family law matters at the same time
• stronger perpetrator programs and increased monitoring and oversight by agencies
• family violence training for all key workforces—including in hospitals and schools
• investment in future generations through expanded respectful relationships education in schools and
• an independent Family Violence Agency to hold government to account.

Dispute Resolution and Family Violence

There are a number of ways that dispute resolution plays a role in our response to family violence: through provision of family dispute resolution in the federal family law system, through child protection conciliation conferences in the state Children’s Courts, through the negotiation process that takes place in finalising the conditions of family violence orders in state magistrates’ courts, and in resolving disputes with providers of essential services, such as electricity, water, banking and telecommunications, as a result of economic abuse. Although not strictly a civil dispute resolution process, there are also possibilities for the use of restorative justice processes as an adjunct to the criminal and family violence system.

Elsewhere on this blog I have described my own journey as a feminist from polemical critic to designer of a safe(r) mediation processes for women who have experienced family violence. As I have written previously, there is a legitimate concern about the use of informal dispute resolution processes in cases of family violence because of deep power imbalances between perpetrators and victims. It is now more widely accepted, however, that with appropriate support and careful attention not to minimise the violence, family law disputes which involve family violence can be mediated. Outside the family mediation context, the same debate about the use of private ordering in cases of family violence could be had in relation to family violence intervention orders or child protection matters.

The Royal Commission’s family violence report canvasses several of these arguments plus more in a range of areas of policy, law and practice relating to family violence. The Royal Commission, being a Victorian institution, was not able to examine family dispute resolution directly (which is a federal process).

The central issues raised by the Royal Commission which relate to dispute resolution are summarised briefly here.

Dispute Resolution and Family Violence-Related Debts

Recommendation 110 of the Royal Commission’s report reads as follows:

The Victorian Government encourage the Victorian Energy and Water Ombudsman and the Commonwealth Financial Services Ombudsman and Telecommunications Ombudsman to publicise the availability of their dispute-resolution processes to help victims of family violence resolve disputes with service providers in relation to debts and liabilities incurred in the context of family violence [within 12 months].

This recommendation concerns family violence-related debt. The Commission heard that most women who seek assistance for family violence issues leave their relationship with debt. Through the use of deception or coercion, perpetrators may avoid responsibility for a range of debts and leave their former partners with substantial liabilities (RCFV Report, Volume IV, chapter 21 p.102). This is a form of economic abuse, which is increasingly recognised as a form of family violence across the Australian jurisdictions.

Women who have family violence-debt often have trouble negotiating the consequences of that debt with service providers. In their report Stepping Stones: Legal Barriers to Economic Equality After Family Violence, Women’s Legal Service Victoria noted that ‘service providers such as energy retailers, telecommunication services and banks have low awareness of the difficulties faced by women experiencing family violence and are unhelpful when interacting with these customers.’ Professor Roslyn Russell has recently shown how staff in bank branches and call centres, report dealing with customers who are experiencing, trying to leave, or have left abusive relationships, yet there is limited training for banking staff on family violence.

A major proportion of Australia’s dispute resolution services are offered through industry ombudsman and complaint handling services such as the Victorian Energy and Water Ombudsman and the Commonwealth Financial Services Ombudsman and Telecommunications Industry Ombudsman. These services often use a combination of mediation, negotiation and conciliation to resolve disputes. It is clear these services are dealing with many disputes that arise with service providers as a result of family violence. Because such services are not part of the family violence system they may not have policies or training in place to identify or adequately address financial abuse and family violence. The Royal Commission’s recommendation is designed to develop employees’ capacity to understand, identify and respond to family violence within industry dispute resolution schemes so that victims of family violence can continue to access essential services such as household energy, water, telecommunications and financial services.

Negotiating Consent Orders in Family Violence Intervention Order Processes

Family Violence Intervention Orders (FVIOs) (also known as protection orders and apprehended violence orders in other jurisdictions), are orders made by the courts to protect a person from another family member who is perpetrating family violence. There are often conditions attached to FVIOs which set out exactly what the perpetrator must do or not do in order to stop committing, and to prevent the future commission of, family violence. In Australia, FVIOs are made by state Magistrates’ courts. The Royal Commission noted that ‘a high proportion’ of FVIOs are made by consent which means that the parties to the intervention order agree themselves to the FVIO and the conditions attached to the order which the Magistrate merely formalises (RCFV Report, Volume III, Chapter 16, p.134). There is an incentive for perpetrators to settle orders by consent in the Victorian system because they can be made without the perpetrator admitting to any or all of the family violence allegations set out in the FVIO application. However for victims, there is a clear danger inherent in the negotiation process for consent orders, as described by the Commission:

‘the negotiation process involved in arriving at an order by consent may be opaque and variable depending on the situation, the parties and the presence of legal representatives. If there is a history of family violence between the parties, with everything that can entail – including an imbalance of power, fear, vulnerability, and the possibility of manipulation and coercion – it is extremely important that the negotiation process is properly managed. If the parties are not (or not adequately) legally represented, there is no guarantee that this will occur, and the result can be incomplete or inappropriate orders, whether on a primary application, a variation, extension or withdrawal, or a cross-application’ (RCFV Report, Volume III, Chapter 16, p.178).

Mediation is not formally part of the process for negotiating FVIOs in Victoria, although it is in the ACT. The danger of any negotiation process used to determine the terms of FVIOs is that it is the very acts of family violence that are being discussed and negotiated, and that a poor process may result in a poor order with conditions that fail to protect the victim and her children. Because so little is known about the process for negotiating consent orders for FVIOs in Victoria, the Royal Commission adopted a cautious approach and recommended that a committee be established within the next three years to investigate how consent-based family violence intervention orders are currently negotiated and to develop a safe, supported negotiation process for victims (recommendation 77). On this issue, the parallels to family dispute resolution are clear. Of note is the safe and supported negotiation process developed by Women’s Legal Service in Queensland called Coordinated Family Dispute Resolution (CFDR). I co-designed that model of family dispute resolution and co-authored an article about CFDR.

Restorative Justice and Family Violence

Restorative justice is a process which was developed from the criminal justice system which enables all parties who have a stake in an offence to come together to discuss the aftermath of the offence and implications for the future. While restorative processes have a criminal provenance, which makes them distinct from ADR processes such as mediation and conciliation, the processes share in common a commitment to party empowerment and a sense that creative solutions can be found through ‘talking it out’ which would not be possible in the formal legal system.

The Royal Commission noted that while the justice system plays a fundamental role in protecting victims’ safety and promoting perpetrator accountability, that many women find the reality of the court process to be deeply dissatisfying and even re-traumatising: ‘A strong theme that emerged from consultations held by the Commission was the need for victims to understand the options available to them, and the process involved, and to be empowered to make their own decisions about what steps and outcomes are appropriate’ (RCFV Report, Volume IV, Chapter 22 p.136).

Restorative justice programs have the potential to provide family violence victims with the chance to be heard, to explain to the perpetrator what the impact of the violence has been and to be empowered to discuss future needs, including any reparations. Such a process potentially places great power in the hands of the family violence victim.

However the same concerns can be raised about the use of restorative justice in family violence cases as there are about the use of family mediation in cases of family violence. The concerns about use of restorative justice in this context include unequal power relationships between victims and perpetrators, concerns about safety, and concerns about the appeal to apology and forgiveness which are part of the cycle of abuse in family violence.

The Commission concluded that restorative justice processes have the potential to assist victims of family violence to recover from the impact of the abuse and to mitigate the limitations of the justice system (RCFV Report, Volume IV, Chapter 22 p.143). The Commission recommended that within two years a pilot program be developed for the delivery of restorative justice options for victims of family violence which would have victims at its centre, incorporate strong safeguards, be based on international best practice, and be delivered by appropriately skilled and qualified facilitators (recommendation 122).