A dispute about the extent to which an employer can sanction an employee for the content of their personal social media posts made outside work hours has been settled on the eve of hearing in the Federal Court. This provides a useful opportunity to reflect upon two matters:

• The impact of dispute settlement on the development and clarification of the law; and
• The persistence of last minute settlement in litigated matters.

Brave and innovative thinking is needed to address both of these issues.

Background

(Background sourced from: New Matilda, Sydney Morning Herald, Conversation and Corrs blog)

On ANZAC Day 25th April 2015 Scott McIntyre published four tweets that expressed his personal opinions about ANZAC soldiers’ war crimes during WW2. The tweets were noticed by some commentators, and there was wide condemnation including from federal government ministers and Mr McIntyre’s employer, SBS, who terminated his employment 12 hours after his tweets. One month later Scott McIntyre lodged an unfair dismissal claim with Fair Work Australia. His employer argued that McIntyre’s employment had been terminated because he had breached the network’s social media policy by refusing (upon request by his employer) to “delete a series of inflammatory tweets and publicly apologise.” If the matter had gone to hearing, as it was scheduled to on 11 April 2016, some interesting legal questions about whether or not the termination was lawful were likely to be raised by McIntyre’s legal team.

Originally, McIntyre’s argument was that SBS had discriminated against him on the basis of his political opinion contrary to s 351 of the Fair Work Act 2009 (Cth). Following conciliation proceedings at the Fair Work Commission in July 2015, McIntyre abandoned his s 351 claim, because it was recognised that it could not succeed. (Without going into detail here, essentially, the required basis for the claim under NSW law did not exist). It should be noted that the exposure of the flaw in the claim in itself was a useful outcome of the conciliation conference. Efficiency and justice was promoted by serious consideration of the claim by both parties and an exchange of views about its legal basis.

McIntyre decided to pursue an alternative claim for unlawful termination under s 773 of the Fair Work Act 2009 (Cth). An application was lodged and leave sought to pursue this alternative cause of action out of time. SBS resisted this application, but in October 2015 the Fair Work Commission  rejected SBS’s arguments and determined that McIntyre could pursue his new claim. The matter commenced in the Federal Court, there was at least one court event in December 2015, and it was set down for a three day hearing in April 2016. The parties settled the day before the scheduled start date.

Significant Legal Questions

McIntyre’s lawyer Josh Bornstein tweeted on the day after the settlement “It has been a privilege to have represented @mcintinhos & settling his important case about free speech.” A determination of McIntyre’s claim would have provided better guidance to employers and employees about the boundaries of appropriate social media activity and employer responses to employee’s private expressions of their political views. In May 2015, Professor Joellen Riley noted that McIntyre’s case would test the applicability of old law in the age of social media:

Once upon a time, long, long ago, and before social media all but obliterated any boundary between public and private lives, a judge in Australia said (in Australian Tramways’ Employees Association v Brisbane Tramways Co Ltd (1912) 6 CAR 35) that a person may wear, worship or believe whatever one chooses, in matters not affecting work.

The boundary between the employment and private sphere has broken down almost irretrievably for most workers, particularly in fields such as journalism, where employees are expected to engage on social media and to build a public profile that will benefit their employer. Most organisations have social media policies, and the case would have tested the interaction between the employee’s freedom of political expression and such policies.

For dispute resolution practitioners and scholars, the settlement of what would have been an important case reminds us of the public function of our judicial system in providing clarity to citizens about acceptable standards of behaviour.

The terms of the settlement between McIntyre and SBS are private. The questions that would have been determined by the court in the case remain arguable, meaning that other employers and employees are no better placed to predict how the courts would view their actions.

The concern that settlement has an impact upon the development of the law has been voiced throughout the development of the modern dispute resolution field (notably, Owen Fiss in his 1984 article “Against Settlement”). Most matters have always settled, because individuals seek to avoid the risks and costs of engaging in the entire formal legal process. Dominique Allen has noted that discrimination law is a relatively new area of law, largely statute based, and relies upon the judiciary to give guidance about the meaning and application of the statutory provisions, which means that confidential settlements pose a problem in delivering the behavioural guidance that the law is intended to provide (Dominique Allen, “Against Settlement? Owen Fiss, ADR and Australian Discrimination Law” (2009) 10(4) International Journal of Discrimination and the Law 191, 199). Perhaps more attention could be paid to the question of whether there are alternative ways of clarifying the law and delivering justice. Consideration of ways to achieve the benefits of judicial determination, while avoiding the costs to the individuals whose dispute raises important legal questions, may be long overdue. Sometimes dispute resolvers find themselves advocating for dispute resolution as the better process than trial, and engaging in advocacy against trial. But a less adversarial approach to the conversation can support being “for settlement” and “for litigation” (see Michael Moffitt, “Three Things to be Against (‘Settlement’ not included)” (2009) 78(3) Fordham Law Review 1203). There is a need for the litigation process to be critically examined and for means of improvement to be identified. Perhaps dispute resolution scholars, with a penchant for radical non-attached and creative thinking, have something to offer in the innovative justice space?

Last minute settlement

The fact that McIntyre and SBS settled his claim is unsurprising, given the personal costs and risks involved. It is less clear why the settlement was reached at the last minute. It did not occur until after considerable expense had already been incurred by the parties and all of the preparation for the hearing was complete. In that sense, the cost savings to the individual parties were not as great as they might have been had serious settlement negotiations resolved the matter earlier.

As an outsider, it is impossible to know what kinds of negotiation events occurred between the Fair Work Commission’s hearing on 12 October 2015, which confirmed that McIntyre could pursue his claim, and 11 April 2016, when it was announced that the matter had settled. I can hazard a guess that the legal practitioners and their clients may not have had serious and comprehensive conversations about the risks, costs and complexities of going ahead with the hearing until late in the process. For Mr McIntyre, succeeding at the hearing would have brought a considerable sense of justice, but the risk of losing would place him at risk of an adverse costs order. A loss for SBS at the hearing would have included having the details of their decision making in dismissing McIntyre played out in public, and used as an example of what not to do when dismissing employees. The risks and costs could have been understood, considered, and weighed well before the eve of trial. It is true that imminent time pressure does present a part of the persuasion to settle. However, there is a need for innovative thinking about how to create a culture of serious attention to settlement before parties have had significant costs incurred at their expense.

No doubt the time pressures of operating a busy litigation practice mean that only the most urgent of matters receive attention from litigation lawyers. This is why court-connected mediation has succeeded by creating a negotiation event earlier in the litigation process that makes attention to settlement more “urgent” than it would otherwise be. Mediation has not increased the rate of settlement, but it has created an incentive for earlier settlement of cases destined to settle on the steps of court. At the end of the day, the people who benefit most from last minute settlement (as opposed to settlement at an appropriate earlier stage), are lawyers, and this is the great conflict of interest inherent in litigation practice. Perhaps there are more innovations that could be introduced to create incentives for further change to culture and practice? 

The Australian Dispute Resolution Research Network is pleased to be hosting its fifth annual research round table in 2016. The Round Table will be held from Friday afternoon 9th until midday Sunday 11th December 2016 at the University of Tasmania in Hobart. This announcement invites researchers to submit proposals for papers to be included in the Round Table programme. The ADRRN Round Table Call for Papers 2016 contains more detail.

We welcome proposals that consider dispute resolution from a scholarly, critical and/or empirical perspective. We particularly encourage submissions from postgraduate students and early career researchers. All proposal will be considered. Papers must not have been published or submitted for publication, as the focus is work in progress.

There will be a limit to the number of papers able to be part of the round table discussions. A panel will select round table papers from abstracts submitted. The aim is to be as inclusive as time and numbers allow. The following selection criteria will be applied:

• Papers take a scholarly, critical and/or empirical perspective on an area of dispute resolution;
• The round table will include a spread of participants across stages of career; and
• A well-balanced range of work will be presented at the round table to provide diversity, to develop the field and to enable cohesive discussion.

Deadline for paper proposals:   30 May 2016

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. Participation is on a self-funded basis.

For further information, please:

• Read the full Call for Papers ADRRN Round Table Call for Papers 2016
• Contact the conference convenors Olivia Rundle, Sue Douglas and Kate Curnow via adrresearchnetwork@gmail.com (monitored twice weekly)

Background

On 9^th March 2016, the New Matilda published a full transcript of Queen Victoria Women’s Centre’s annual International Women’s Day address titled “Looking Past White Australia and White Feminism.” The author of the keynote was Celeste Liddle, who through her Facebook public profile page Black Feminist Ranter posted a link to the New Matilda article. On 10^th March Celeste tweeted “been locked out of @facebook because someone reported my @newmatilda transcript for nudity as it contained a pic of desert women painted up”. The photograph was published by New Matilda and showed two aboriginal women engaging in ceremony, wearing only paint over their chests, and this nudity had been deemed to breach Facebook’s Community Standards. The Black Feminist Ranter timeline demonstrates that outrage ensued, Facebook users reposted the apparently offending article, some were blocked themselves, Black Feminist Ranter was repeatedly blocked for posts about the blocking, and eventually the matter was featured in the mainstream media (including ABC, Sydney Morning Herald, Public Radio International and Daily Life). A change.org petition received considerable support.

Flaws in Facebook’s dispute management system have been exposed by the way the complaints about the image were handled. Key failings include lack of procedural fairness or due process, and inconsistency. There is a clear need for Facebook to dramatically overhaul the way that its complaints handling system operates, as the current system facilitates malicious targeting by “trolls” and allows legitimate and valuable voices (in this case feminist and indigenous) to be silenced. This is not consistent with the standards expected by the global community and therefore Facebook’s means of decision making according to global “community standards” are failing. There is a history of Facebook responding constructively to community objection to its censorship policies, which suggests that a user led campaign may succeed in pressuring Facebook to change its processes, despite the enormous power imbalance between it and users.

Community Standards

Facebook is populated by a diverse global community and acknowledges the challenge of establishing rules about the nature of content that is allowed to be posted on its platform. Users are offered advice about how to avoid content that they don’t like. However, Facebook (along with other social networking sites) is prepared to and frequently does censor content posted to its platform. Facebook relies upon peer to peer reporting of inappropriate content and assesses that content against its Community Standards, to which all users have agreed to comply when they committed to the Terms of Use. Safety, respect, cultural diversity and self-control are principles that Facebook claims are its goals in striking the right balance between self-expression and promoting a welcome and safe environment for all users. The standards and processes of censorship adopted by Facebook have been described as “opaque” and it has been suggested that this may be a deliberate obfuscation, to avoid accountability. This is despite Facebook’s claimed commitment to transparency.

It has been observed that Facebook’s approach to nudity reflects “odd prejudices about sex.” Nudity is a separate category of banned content in addition to pornographic imagery (Term 3(7)). The focus of nudity is not upon the sexualised nature of the image, but the body part exposed. Prohibited body parts include: genitals, fully exposed buttocks, female nipples. Male nipples are not prohibited from display. There are precedents of images of women with painted nipples being determined not to breach the Community Standards (including recent posts by Kim Kardashian and of a naked women riding a bicycle with a dildo strapped to the handlebars).

Facebook’s revision of its Community Standards

Facebook recognises that its processes of applying Community Standards about nudity “can sometimes be more blunt than we would like and restrict content shared for legitimate purposes” and claims to be “always working to get better at evaluating this content and enforcing our standards.” In March 2015 three kinds of image were added to a list of exceptions to the prohibition of nudity: breastfeeding women, post-mastectomy scarring, and photographs of paintings, sculptures and other art depicting nude figures. The revision of the Community Standards was a response to widespread campaigns protesting against and petitioning Facebook to change its banning of these three categories of image. The banning of the female nipple has been the subject of much consternation, with acceptable male nipple pasties circulated to facilitate covering the apparently offensive female nipple on user’s images prior to posting.

Another example of the willingness of Facebook to change its systems to better cater to users is the introduction in 2012 of an opportunity to resolve content objections without the need for intervention by Facebook’s moderators. One of the options offered when a person objects to a post, in addition to making a report, hiding it from their person view or “unfriending” the person who made it, is to select a box and send an anonymous message explaining “Hey, I don’t like this photo. Please remove it.” The complainer can indicate that they object to the photograph for reasons such as “it makes me sad”, “it’s embarrassing” or “it’s a bad photo of me”. More than 8 million people per week use these social resolution tools to resolve their differences about content posted on Facebook. More than half of those asked by another user to remove a photograph do so, and at least 75% reply. Often the acknowledgement is enough for the complainer to take no further action in relation to the post, and often the person who posted the content was not intending to cause offence. This social resolution tool could be mirrored in the process that is applied when a moderator becomes involved in decision making. The advantages of giving users a voice in the decision making process are obvious.

Facebook’s Dispute Handling System

As noted above, peer to peer reporting is the means by which Facebook identifies content that ought to be censored and other breaches of the Community Standards. According to Monika Bickert, Facebook’s head of policy management, more than 1 million reports of violations of the Community Standards are filed every day. Facebook claims, under the Terms of Use 5(2), absolute discretion to decide whether or not content should be removed.

The Dispute System Design is explained in the “Reporting Guide.” Although Facebook uses automated learning systems to identify content that has been previously removed, the main engine of the reporting system is outsourced human workers who review the content that has been reported, according to a manual. They determine whether the content should be deleted, allowed, or the report should be “escalated” to Facebook employees for determination.

Where content is deemed not to breach the community standards, the reporter will receive a message through Facebook notifying them that it “doesn’t violate the Facebook Terms” and referring them to the guide to avoiding content that they don’t like.

Where content is deemed to breach the community standards, the reporter will receive a notification of the decision and the person who posted the content will receive a notice that the content had been removed. Where a person has previously had a report upheld and content removed, Facebook may initiate a suspension or termination of the person’s account (Term 14). For Celeste Liddle the sequence of punishments were: removal of content, a 24 hour ban, a 3 day ban, and a 7 day ban. Although the Daily Mail and ABC Facebook pages were not blocked by Facebook for posting two of the original articles, many other users had the same content removed (including New Matilda) or were blocked from access to Facebook.

The reporting guide reveals that the person against whom a report is made has no voice in the decision making process about whether or not their content breaches the Community Standards. There is only one reference to “reportee can appeal a decision in some cases”, and that comes after the person has been blocked (as opposed to their content removed). There is no transparency about which cases and upon what basis. Furthermore, as Celeste Liddle found, it is incredibly difficult to communicate with Facebook once a user has been blocked from access to the platform.

There is no dispute resolution clause in the Terms of Use apart from a reference to choice of law and jurisdiction in California (Term 15(1)). Unlike most internet organisations, Facebook has no online dispute resolution process to facilitate the resolution of disputes between its users nor between itself and its users – other than the opaque and one-sided reporting system.

Malicious reporting happens, and the failure of Facebook’s dispute handling system to account for such behaviour is a flaw that perpetuates unfair treatment of some users. Malicious reporting occurs where reports are made against a person repetitively, as a way of triggering a removal of content and then a ban of the person reported against. Celeste Liddle maintains that this is what occurred to her, with four separate posts being the subject of reports over only one week. Once an initial report was upheld, she became a “repeat offender” in the Facebook moderating system, and therefore greater penalties were imposed for subsequent reports.

Power analysis

One problem with Facebook’s apparently unfettered power over censorship of content is the danger (illustrated by the Celeste Liddle example) that provocative voices that challenge the status quo will be silenced. Gil’ad Idisis has observed that:

“There is no reason to trust that commercial entities will want to, or even know how to, make a balanced, good faith determination of whether content is “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable”…Commercial companies are inherently biased, primarily focusing on maximising profits, which is generally achieved by reaching the broadest client base and by keeping content as consensual and non-provocative as possible” (at 162).

Changing the way that Facebook deals with reports will only occur if the organisation is motivated to make that change. This must be achieved within an environment of considerable power imbalance between Facebook and other parties, and it’s extremely strong market position.

There is a huge power imbalance between Facebook and its individual users, who need Facebook much more than Facebook needs them. Facebook suffers no financial detriment by blocking a user. Users can choose not to use Facebook, but it has become a core part of many personal, social, commercial and political activities. Unlike other social network platforms, Facebook’s existence is not threatened by poor dispute handling practices, as its customers are effectively “locked in” to using the platform to maintain connection with their network. The benefit of Facebook for users is the access to the network of other users with whom content is shared. The Facebook platform enables people to bring content to the people who are likely to be interested in it, and for independent content producers such as Celeste Liddle, this is a means of maintaining their livelihood.

The power of Facebook has caused some argument that it wields power and influence comparable to a nation state, without being bound by the same international laws that seek to moderate state behaviour. Some people have argued for governmental regulation or the creation of an international body capable of regulating the behaviour of organisations such as Facebook. Both of these proposals are cumbersome, expensive, and arguably unrealistic.

There are significant barriers to judicial processes to pursue a claim against Facebook. Although Facebook is based in the USA, and users agree to the choice of Californian law when they sign up, at least 80% of users are located outside the USA. There are complex practical difficulties in pursuing formal legal action against or imposing governmental regulation of Facebook across jurisdictional borders and between different systems of law. Demonstrating a financial loss may also be difficult, which restricts the remedies available even if a wrong can be demonstrated. Time is always a significant barrier to the efficacy of formal justice processes, with access to faster decision making a key attraction of other dispute resolution processes.

Proposals

One of the most powerful ways of moderating the behaviour of social networking providers is public opinion (as demonstrated by previous alterations to Community Standards regarding nudity and reversal of decisions not to remove pro-rape content). Users (en masse) and shareholders are possibly the most well placed to influence the revision of processes and the Community Standards. There ought to be a clear, transparent and constructive process that gives voice to all users, not just those who make a report. A dialogue with the community of users is absent from Facebook’s content moderation process, and to date it has primarily occurred through user petitions. Users could engage with Facebook to demand that the processes exhibit better transparency and fairness, and that a review of the nudity standards be conducted so that outcomes are more consistent with the views of the community. Cultural sensitivity should be supported through Facebook’s process of content moderation. These substantive issues are not considered further here.

The principles of dispute system design maintain that disputes can be handled systemically rather than on an ad hoc basis, and that a systemic approach leads to more effective dispute handling and prevention of disputes arising (because the rules are made clear). There are systemic failures in Facebook’s current system.

It is a basic tenet of procedural fairness that a person affected by a decision ought to be given an opportunity to respond to the case against them. This could be achieved by a transparent facility for users against whom a report is made to make a case to Facebook or lodge a complaint about a decision that has been made to remove their content. As a private organisation, the question of whether or not Facebook owes its users procedural fairness would be determined according to it’s  private rules of corporate structure and/or contract. Again, public demand that users be accorded procedural fairness is not unreasonable.

Key changes that could be made to Facebook’s dispute handling system to reflect good dispute system design include the following:

1. Giving users against who a report has been made an opportunity to respond to the report before a decision is made. This could be modelled on the peer to peer response that is already in place – the person whose content has been objected to could be sent a message informing them that the content had been reported and the reason selected, and a checklist of responses could be made available to assist the decision maker. The list might include options such as “I do not object to the content being removed” and “I disagree that the content breaches the Community Standards.”
2. Creating a transparent online internal review process after decisions have been made. This could occur after the person is notified that their content has been removed. Again, a checklist approach could be adopted, with options such as “I understand now that the content breached the Community Standards”, “I disagree that the content breaches the Community Standards”, and “I want to appeal the decision to remove my content.” Checking the last option could trigger an online conversation with a Facebook moderator and the user about the content, with a view to resolving whether the Community Standards had been misapplied. Where on consideration, it was determined that the censorship was mistaken or unfair, the record of the report against the user should be deleted from their account, to prevent aggravated consequences of malicious reporting in the future.
3. Referring appeals from censorship decisions to an external online dispute resolution provider. Any external appeals process needs to be quick and cost effective (particularly as most users do not have a financial relationship with Facebook). Online dispute resolution is an established process with many providers available in the market.
4. Before Facebook triggers a suspension of a user’s account, the user should be given an opportunity to engage online with a Facebook representative to clarify the reasons for the blocking and make arguments against the decision (such as alerting Facebook to a pattern of malicious reporting). This is important because currently when a person is blocked, it is extremely difficult for them to communicate with Facebook outside the platform.
5. Malicious reporting could be dealt with by Facebook registering complaints of malicious reporting (in the same way that it does users whose content has been reported and removed) and applying sanctions against such reporters. Again, before imposing a sanction, that user ought to be given an opportunity to make arguments against the decision to sanction them. Arguments might be made on the basis that their motivations for reporting were genuine because they believed that the content breached the Community Standards. Such claims could be reviewed against records of outcomes of reports.

In conclusion, there are substantial problems with Facebook’s dispute handling system. The most effective way to bring about a change to the system would be to convince Facebook that its own interests would be served by the change. Public outcry has been effective in the past and may be effective in this case. The lack of transparency, arbitrariness and inconsistency of outcomes in the current approach all contradict Facebook’s own statements of principle, mission and standards.

Historically most Australians have lived in detached homes. However, particularly in Melbourne and Sydney, this is changing rapidly. Australians now also live in apartments, medium density housing and master planned estates.  This increase in higher density living mirrors trends worldwide, where apartment-style developments are common in countries that traditionally favoured detached housing. The greatest increase in apartments is occurring in high rise towers and many residents are finding vertical living poses some challenges, including significant levels of conflict. Apartments require joint infrastructure which may simply be lifts, foyers and stairwells or may also include joint lifestyle assets, such as swimming pools and gyms. In Victoria and New South Wales the legal entity holding the joint assets is known as an owners corporation. Individuals purchase their own apartment and have an interest in shared assets. Legislative governance arrangements require a committee of management to manage the shared assets. Generally, a property manager (owners corporation manager) is employed to manage the legal entity and assets. Conflict may arise over the management and use of shared assets and also the greater density of living including disputes over noise, pets and renters. Arguably, there is a lack of appropriate education about conflict engagement for committees and the property managers who assist in the management of owners corporations. Recently the Victorian government has announced a review of owners corporation legislation.  As part of this the government is considering requiring more of property mangers in terms of education and this change may include compulsory training in conflict resolution.  This may be the first step to better equipping property managers to engage with conflict.  It may also help mangers to develop strategies for conflict prevention due to the building of community and the skilling of committees and residents in this area. With the widespread growth in apartments we need to ensure that conflict is not allowed to fester in vertical communities.  The answer is to train property managers in skilled conflict so they can deal with disputes in a timely fashion.  This will be positively impact on the many Australians who will live in apartments and other higher density developments.

The ADR Research Network has received the following information from Steve Lancken, a Mediator from Negocio Resolutions:

“A job opening for an Executive Assistant (3-4 days per week) LINK here
Short Version: This is an excellent opportunity to join a small mediation firm located in the CBD as an executive assistant to the principal for someone who has a law degree, is studying towards a law degree, or has legal experience. The role offers a rare opportunity to be exposed to and participate in dispute resolution processes."

And

"a Volunteer Intern position for Voluntas – A Volunteer Mediation Pilot Scheme. LINK here
Short version: The Voluntas Mediation Pilot scheme is looking for one or more unpaid interns to administer the scheme. The role involves the administration of Pro Bono Mediation services for the volunteer sector and is a chance to work with some of Australia’s leading mediators, learn about ADR and support social justice."

Please contact Negocio directly if you are interested.

Traditionally, as we all know, mediators were identified as neutral third parties and mediation itself was defined as involving the intervention of a third party neutral. Neutrality has been widely criticised to the extent that it no longer appears as a  defining feature or even an ethical requirement in the National Mediation Accreditation Standards (NMAS). An early construction of the idea of neutrality was that it meant mediators exercised no power in mediation.

We have come along way from this early view about power in mediation. Scholarly critique and practitioners’ reflections have debunked the idea that mediators have no power. Questions remain however about the sources of mediator power and the proper limits of its exercise. Traditionally mediators attributed power to the process of mediation itself, and constructed the parties’ voluntary consent to engaging in the process as giving them authority (legitimised power) to control that process. This approach was consistent with constructing mediators as neutral as to the content of mediation but in control of the process.

The distinction between process and content in mediation no longer appears in the NMAS. This change is consistent with the development of ‘newer’ models of mediation, namely, narrative and transformative models, extending the traditional  problem-solving (facilitative and evaluative) models. Postmodern constructions of power are more consistent with these later models. At the same time facilitative and evaluative models are the most commonly practised, with practitioners’ sometimes incorporating ‘aspects’ of narrative and transformative approaches.

Authority to mediate is increasingly mandated by legislation. But the scope of mediator power is only loosely delineated in the broad definitions of mediation itself. Questions about the mediator’s role in ensuring substantive fairness in addition to procedural fairness raise further questions about the scope of mediator power and its proper exercise. Questions of mediator ethics equally pose questions about how much power mediators should have and how they should exercise it.

What is the basis of mediator power? What is its proper scope? How should it be constrained and directed?

What are your thoughts?

Some food for thought (a few selected,but not an exhaustive list of relevant,references):

Astor, H. 2005, “Some Contemporary Theories of Power in Mediation: A Primer for the Puzzled Practitioner”, Australasian Dispute Resolution Journal, Vol. 16, pp. 30-9.

Bagshaw, D. 2003, “Language, Power and Knowledge”, Australasian Dispute Resolution Journal, Vol. 14, pp. 130-41.

Bayliss, C. and Carroll, R. 2002, “The Nature and Importance of Mechanisms for Addressing Power Differences in Statutory Mediation”, Bond Law Review, Vol. 14, pp. 285-318.

Bayliss, C. and Carroll, R. 2005, “Power Issues in Mediation”, ADR Bulletin, Vol. 7, no. 8, pp. 134-38.

Field, R. 1996, “Mediation and the Art of Power (Im)balancing”, QUT Law and Justice Journal, Vol. 12, pp. 264-73.

Field, R. 2000, “Neutrality and Power: Myths and Reality”, The ADR Bulletin, Vol. 3, No. 1, pp. 16-20.

Mayer, B. 1987, “The Dynamics of Power in Mediation”, Mediation Quarterly, Vol. 16, pp. 75-86.

Wade, J. 1994, “Forms of Power in Family Mediation and Negotiation”, Australian Journal of Family Law, Vol. 6, pp. 40-57.

This is a call for all researchers in the Dispute Resolution field reminding of the National Mediation Biennial Conference to be held on the Gold Coast from Monday, 12 – Wednesday, 14 September 2016.

The conference theme is ‘Thought, Innovation and Creativity: The Next Decade’

This is a unique opportunity to exchange ideas, results, evaluations, and proposals for future research. The research day provides an ideal opportunity to discuss between practitioners and researchers thought, innovation and creativity in the DR research area for the next decade.

A specific Dispute Resolution Research Forum Day will be held post-conference on Thursday, September 15, 2016 at Bond University. Attendance at the DR Research Forum is included in the cost of the Conference.

Abstracts are due 15 March 2016. Further details are available at www.mediationconference.com.au

Broad area of inquiry: What drives lawyer behaviour in dispute settlement?

Dr Olivia Rundle would love to work with some new research higher degree candidates, and applications are open this month to apply to enrol in a scholarship supported PhD or Masters by Research at the Faculty of Law, University of Tasmania.

It is well recognised that the lack of clarity about what lawyers ought to be doing in consensus based processes (as opposed to the traditional adversary system of judicial determination) can contribute to widely variable ideas about the boundaries of ethical behaviour in negotiation, mediation and other dispute resolution processes. Factors that influence lawyers’ behaviour are likely to include: lawyers’ professional identity, conceptualisation of their professional responsibilities, guidelines, client demands, time pressures, billing pressures, skills, training, and personality. Important contributions to this area of inquiry include the following (by no means an exhaustive list):

There is a need for more empirical research about the actual drivers behind lawyer behaviour in the settlement of clients’ disputes. Understanding the practitioner’s perspective would make an important contribution to the field of non-judicial dispute resolution. There is also a need for more empirical work that investigates the lawyers’ perspective of reforms that have been made in the civil justice system. Just as lawyers’ behaviour in dispute resolution is at times cause of complaint, lawyers’ behaviour in litigation is also subject to some criticism. Dr Rundle is curious about why lawyers do things the way they do.

Olivia has a strong background in researching about lawyers in dispute resolution. Her own PhD investigated the practices and perspectives of lawyers engaging in court-connected mediation at the Supreme Court of Tasmania. Since her PhD, Olivia has written extensively about the role that lawyers play in mediation, and explored in a hypothetical sense the drivers that could sit behind lawyer behaviour in dispute resolution processes. See Olivia’s profile regarding her work in the dispute resolution area on the ADR Research Network blog. Some of her key publications to date are as follows:

If you would like to explore a research question within this broad area of inquiry with Olivia, then please consider submitting an application. The application process for research higher degrees is explained on the UTAS Gradute Research Website. Olivia can be contacted at Olivia.Rundle@utas.edu.au with topic related queries. See PhD/Masters Scholarships for Hot Topics on the UTAS Faculty of Law Scholarships Page for details of the competitive scholarship process – this topic is one of three “Hot Topics” and we have a limited number of scholarships to allocate. The University will award the scholarships to the most highly ranked applicants. Olivia will not be involved in the ranking or decision making about scholarships. Applications close 31 March 2016.

Thanks to Fiona Hollier, an opportunity just came to my attention. The US based Association for Conflict Resolution (ACR) is calling for emerging researchers to submit proposals to present at their conference in October in Baltimore. The selection criteria aim to support the dissemination of interesting research that might not otherwise come to the attention of their members.

The presentation serves three primary functions: 1) to inform our membership about a topic in which they might not have engaged and/or excite them about new possibilities in the field; 2) to inspire our membership with the high quality of work being done by those preparing to enter or newly practicing in the field; 3) to give an opportunity to a number of our newest professionals to demonstrate the contribution being made by the “New Voices” in the field.

Further details are available at http://www.imis100us2.com/ACR/ACR/Education___Training/Conflict_Resolution_Training.aspx

Additional opportunity

The conference presentation will also be videoed and featured on the ACR website.  Additionally, a select number of submissions that were not selected for presentation at the conference will be invited to submit a video for the website.

Who is eligible to apply

All current or recent students in programs specializing in conflict resolution or interdisciplinary programs in which conflict studies are an integral part may apply.  Practitioners who may not have been students in certificate or degree programs but have done other forms of training and have entered the field in the last five years are also invited to apply.

If you are doing some research in an innovative space or from a unique angle, consider applying for this fantastic opportunity to disseminate your work on the international stage.

I haven’t heard anything official yet – but on the grapevine it seems that the Law Admissions Advisory Committee (LACC) might be listening to those of us advocating for the recognition of DR in the law curriculum.

Members of the ADR Research Network, and the DR community more broadly – particularly the DR legal academic community – have long been arguing that the law curriculum needs to better integrate ADR knowledge, skills and attitudes if law schools are to prepare their students adequately for entry into the legal profession and the wider world of work. This view was very clearly reflected in the Threshold Outcomes for Law (Sally Kift, Mark Israel and Rachael Field, Learning and Teaching Academic Standards Project: Bachelor of Laws Learning and Teaching Academic Standards Statement December 2010 (Australian Learning and Teaching Council, 2011)).

In March 2015, members of the Wellness Network for Law (Madeleine Dupuche, Lecturer, College of Law, Dr Anna Huggins, Senior Lecturer, QUT Faculty of Law, and myself) made a submission to LACC’s Review of Academic Requirements for Admission to the Legal Profession.  That review is reconsidering the content of the Priestley 11 – the 11 subjects required for eligibility for admission to legal practice.

Our submission made a number of recommendations. We argued that the law curriculum should be intentionally designed to better equip law students for success in legal education and in the law, and that an important strategy in achieving this involves including DR as a core subject in the law degree (we chose to use the term ADR for clarity in our communication with the members of LACC who we thought would be more familiar with it).  The relevant part of the submission reads as follows:

Alternative Dispute Resolution

In response to paragraphs 6.4 and 6.5 of the LACC discussion paper the Network makes the following submissions:

• Alternative Dispute Resolution (‘ADR’) should be added as an academic requirement.
• Field and Duffy argue that the majority of Australian law schools are fundamentally failing future practitioners, and the future of the legal profession more broadly, by only offering ADR as an elective subject, thereby highlighting the disconnect between the law school curriculum and 21^st century legal practice (James Duffy and Rachael 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(1) Australasian Dispute Resolution Journal 9). They contend that the following reasons, and others, exist for including ADR as a compulsory subject in the law school curriculum:
  • An absence of compulsory ADR does not reflect current legal practice (for example, ‘it has been estimated that the number of commenced civil actions that culminate in adjudication is less than 5%’;
  • Participation in ADR processes is mandatory under legislation in many Australian jurisdictions;
  • Lawyers have ethical duties to advise about ADR;
  • Good lawyers are emotionally intelligent and ADR instruction contributes to the development of emotional intelligence;
  • Lawyers need to understand about the theory and nature of conflict and this necessarily requires instruction;
  • It is impossible to meet the threshold learning outcomes without exposing all students to ADR instruction;
  • ADR instruction can help students develop a positive professional identity;
  • Teaching ADR supports students’ psychological well-being.

These are compelling reasons for the inclusion of ADR as an academic requirement.

• The High Court of Australia has recently emphasised the need for practitioner cooperation in the resolution of disputes. In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46 (6 November 2013), the Court emphasised the over-riding purpose of the Civil Procedure Act 2005 (NSW) (‘CPA’) as being the facilitation of the just, quick and cheap resolution of the real issues in the dispute. It noted that the solicitors involved had a responsibility to conduct themselves in a way which would assist the court to facilitate the overriding purposes of the CPA: ‘[Cooperation] is an example of professional, ethical obligations of legal practitioners supporting the objectives of the proper administration of justice’ [at 67].

• The National Alternative Dispute Resolution Advisory Council (‘NADRAC’) supported the mandatory inclusion of ADR in the law curriculum, particularly in its 2012 Report: Teaching Alternative Dispute Resolution in Australian Law Schools. That Report made the case for compulsory ADR in the law degree based on the results of a survey of Australian law schools conducted by NADRAC during late 2010 and early 2011; views expressed by forum participants during a panel discussion facilitated by NADRAC at the RMIT University: ADR in Legal Education and Promoting Student Wellbeing Forum, and NADRAC’s own research, analysis and consideration of the topic, including substantial input from a number of NADRAC members with long-standing and specialist expertise in the tertiary sector.In a 2009 report, NADRAC also stated: ‘NADRAC is of the view that more professional development is needed. NADRAC believes that better training at universities is required and that ADR must be elevated from a mere adjunct to civil procedure or litigation subjects to being taught as a full course. An ADR course should be a compulsory core subject that is a prerequisite for admission’ (NADRAC, The Resolve to Resolve: Embracing ADR to Improve Access to Justice in the Federal Jurisdiction (September 2009), 62)

(Note that NADRAC  was unfortunately abolished in late 2013 but its work still remains very valuable and relevant: See Dr Becky Batagol’s Blog for the ADR Research Network: Dumb Decision— The Closure of NADRAC posted on 12/11/2013)

• If a dispute resolution culture is to be achieved in Australia, this must necessarily commence at a grass-roots level in Australian law schools, where it is appropriate for ADR to be a compulsory subject for law students. For this reason, and the reasons articulated above, ADR should be included as an academic requirement for admission to practice.

Fingers crossed we will see some official good news about the inclusion of DR in a revised articulation of the Priestley 11 soon!