What does it mean to be an Australian lawyer in the 21^st century? What are the contemporary demands of effective and efficient lawyering to adequately meet the diverse needs and interests of clients and society?  How can lawyers be part of a profession and a business at the same time? Dispute resolution knowledge, skills and attitudes are the key to answering these questions.

The legal profession professes the rule of law which provides a foundation for civic systems of law and government; serving society by supporting social stability and order, giving ‘vitality to peace, freedom and decency’, and ensuring freedoms (Gerard Brennan, ‘The Role of the Legal Profession in the Rule of Law’ Address at the Supreme Court, Brisbane 31 August 2007, 1). For this reason members of the legal profession engage in an enterprise that is more than simply a commercial industry driven by the neo-liberalist market ideology of the maximization of individual personal gain through the provision of services for profit. As Justice Kiefel of the Australian High Court has said:  ‘Practising lawyers do not just run a business, selling their skills and services to clients in return for fees. The practice of law is a profession and this sets it apart from other, commercial, enterprises’ (Susan Kiefel, ‘Ethics and the Profession of the Lawyer’, Address to the Queensland Law Society The Vincents’ 48th Annual Symposium 2010, 1).

Nevertheless, the practice of law is a business as well as a profession, and it is certainly influenced, if not driven, by the reality of market forces.  It could be said that the legal profession is a ‘market organisation whose legitimacy rests on a social bargain’, an exchange of status and privilege resulting from intellectual and organisational standing for ‘ethical and altruistic service’ (Joanne Bagust, ‘The Legal Profession and the Business of Law’ (2013) 35 Sydney Law Review 27, 27-28).

Professor Richard Susskind first challenged the legal profession to rethink its position in society, the nature of legal work and legal service provision, and the construct of a lawyer’s professional identity, in his work The End of Lawyers? (Richard Susskind, The End of Lawyers? Rethinking the Nature of Legal Services (Oxford University Press, 2008). His next work, Tomorrow’s Lawyers, also provokes the legal profession to engage with profound challenges to familiar ways of knowing, working and being (Richard Susskind, Tomorrow’s Lawyers: An Introduction to Your Future (Oxford University Press, 2013).

Susskind’s predictions are for significant change in the practice of law and the provision of legal services.  There may be disagreement over the detail of his forecasting, but the general direction and tenor of his arguments are compelling. Susskind has said that we are seeing the decline of the ‘Golden Age of Law’ as we have known it. New ways of working and providing legal services – ways that are more collaborative, less adversarial and more efficient – will replace the practices of the past. He predicts that our relatively staid and conservative profession will see more change in the next two decades than it has in the last 200 years. To cope with this change the profession will need to be grounded, resilient, flexible, responsive and skillful.

Simply knowing what the law is has never been sufficient for successful legal practice in any context, but these days it is even more important that lawyers have the necessary skills and attitudes – legal thinking and reasoning skills, legal research skills, communication and collaboration skills, self-regulation skills and an ethical disposition. The Australian Threshold Learning Outcomes (TLOs) for Law acknowledge this.  The TLOs were developed by Sally Kift, Mark Israel and Rachael Field in 2010 as part of the Learning and Teaching Academic Standards Project for the Australian Learning and Teaching Council (available at <http://www.olt.gov.au/resources?text=law>) and articulate what law graduates need to know and be able do. Many of these skills and attitudes are effectively taught in dispute resolution courses at Law Schools around Australia.

In the new environment of 21^st century lawyering there is no doubt that dispute resolution knowledge, skills and values are increasingly critical to effective legal practice – for lawyering that continues to uphold the rule of law whilst also responding to market pressures.

Law schools and the legal profession are still some way, however, from adequately acknowledging dispute resolution as a core element of legal knowledge and competence, central to both transactional and dispute resolution lawyering, and important to the future viability of the legal profession, not only in Australia but also globally. Most Australian law schools, for example, do not yet have a compulsory dispute resolution subject, and are creating law graduates without some of the critical skills and attitudes necessary for 21st century legal practice.

The ADR Research Network is contributing to achieving the changes that are necessary in legal culture, practice and education for the law profession’s future sustainability.

James Duffy published a valuable piece in 2010 probing the value of emotional intelligence for mediation practice. Emotional intelligence (EI) is an established conceptual framework for harnessing the impact of mediator’s emotions in a purposive and positive way in practice. What is EI? It is a conceptual framework emanating from positive psychology and made popular by the work of Dan Goleman. EI emphasises reflective practice in relation to the emotional dimensions of intra and interpersonal experience.

EI has great potential as a framework for incorporating existing practice in relation to the emotional experiences of mediators and parties. It’s reflective emphasis resonants with established practice and developing theory about reflective practice in mediation. Its inclusion of intra and inter personal dimensions enable consideration of both a mediator’s reflection on his/her own emotional responses and the interplay of emotions within mediation sessions.

There are several models of EI. Goleman’s model is the most accessible in terms of its relative succinctness and practical application. The five components of EI developed by Goleman are depicted in the table below, which identifies them according to two dimensions and includes Goleman’s definitions.

Table 1: Adapted from Goleman (2004: 3)

Whatever model is ascribed to, emotional intelligence is foremost about feelings. To be emotionally intelligent signals an ability to monitor feelings our own and those of others, and to use this information to respond in appropriate and effective ways.  EI is recognised as a set of learned skills that can be incorporated into educational programs, including mediation training. It’s food for thought !

 See

Goleman, D. 2004. ‘What Makes a Leader?’ Harvard Business Review, January: 1.

Goleman, D. 1998. Working with Emotional Intelligence. New York: Bantam.

Goleman, D. 1995. Emotional Intelligence. New York: Bantam.

Duffy, J. 2010. ‘Empathy, Neutrality and Emotional Intelligence: A Balancing Act for the Emotional Einstein’ 10 (1) Law and Justice Journal  44-61.

2016 is promising to be an important year for presenting about research into ADR as there are a number of upcoming conferences (see previous posts for details).  First there is the upcoming conference at the ACIJ at Monash University’s law premises in the city of Melbourne.  This Conference on the Civil Justice system will address, along with a range of civil issues, the place of ADR in our legal system.  Second, there is the National Mediation Conference in September at the Gold Coast.  This biannual event is always the highlight of research for me as there is a mix of practitioners, industry bodies and researchers.  I have fond memories of meeting with people from industry and later collaborating on projects sprung from conversations held at this Conference.

Later in the year is our own ADR Research Roundtable which will be held in December in Tasmania at UTAS.  It promises to be another exciting venue for cutting edge research.  The Roundtable in Sydney in 2015, held at UNSW, was a big success.

My paper at the conference dealt with conflict in planning.  It was a work in progress paper that I received valuable feedback about.  I will give you a short description of the paper and then outline the feedback to highlight the value of presenting research in ADR.  As you are probably aware planners routinely deal with issues involving conflict. Planners working in development approval roles in particular are regularly engaged in situations involving people who may be upset, angry and at times aggressive. Individuals involved in planning disputes may represent powerful vested interests or hold passionate personal views, heightening emotions for a whole range of reasons.

My joint paper with Professor Robin Goodman reported on recent interviews conducted with 17 planners employed in four differing local governments in Melbourne, Australia. In these semi-structured interviews planners discussed their experience with conflicts, the adequacy of their training in areas of conflict resolution and reflected on their preparation for some of the most challenging aspects of their profession. The results confirmed the need for greater emphasis to be placed on teaching a range of personal and professional behaviours relating to conflict in planning education.

The interesting feedback that we received at the Sydney Roundtable queried whether we had realised that many of the issues relating to planners and conflict were likely caused by poor dispute resolution design.  If the design was more innovative, allowing for better “voicing” of community concerns, it may be that planners would not bear the brunt of objectors and developers anger.  This feedback has led us to a new fork in our research, exploring the development of innovative dispute resolution design in planning conflicts.  We hope to present our new paper at the National Mediation Conference.  This is one example of the value of presenting your research because the peer feedback can give that “aha” moment beloved of researchers!

Consider getting involved in presenting…..it can have some great benefits!

For all those interested in presenting about their research into Mediation!!!!

To all researchers, Academics and Research Higher Degree students in Arts, Humanities, Law, Justice, Judicial Science, Social Science, Psychology (clinical, child psychology, counselling) and other DR related fields.

The National Mediation Conference Queensland Board encourages you to present and share your work with like-minded researchers at the bi-annual National Mediation Conference 2016 which will be held from Monday, 12 – Wednesday, 14 September 2016 at the Gold Coast Convention and Exhibition Centre on the Gold Coast, Queensland. Pre-conference workshops will be held on Sunday 11^th September 2016. See www.mediationconference.com.au

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

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

This is a unique opportunity to exchange ideas, results, evaluations, proposals for future research and to discuss thought, innovation and creativity in DR research area for the next decade!

Abstracts are due 15 March 2016. As in past conferences, presenters at the Research Day will not receive a speaker’s fee and will have to register for the day if they are not attending the whole conference.

Early Career Researchers along with more established researchers are encouraged to participate in presenting on their latest research.

Delegates include academics, policy makers, and practitioners across the DR spectrum, authors, and participants from the private and public sectors, agencies and organisations.

Presentations will be disseminated via the Conference website and become freely available. Additionally each presenter will be encouraged to publish their material in recognised journals such as the Australasian Dispute Resolution Journal (ADRJ), Conflict Resolution Quarterly, Australian Journal of Family Law, Family Law Review and the Arbitrator & Mediator, Resolution Institute Journal, formally the IAMA Australia Journal.

Please forward this invitation to your networks and others who may be interested to attend the Conference and or present at the Research Forum.

Opportunity to explore, time to surprise and impress

One of the original aims of the modern mediation movement was to give parties “voice” in proceedings that related to litigation.  In court parties have very little opportunity to directly speak, although they may give evidence.  In mediation, in the facilitative model and many other models such as the transformative model, there is the opportunity for parties to tell the story of their dispute.  How easily though in court connected mediation can this opportunity be curtailed through the presence of lawyers who may not wish a client to speak.  Lawyers can be all too aware of the possibility that their client may divulge information that may “harm” their argument and could impact on any later litigation.  But this opportunity for voice, a key notion in the idea of procedural justice, is one of the key reasons that mediation can be a very different process than court.  The opportunity to tell a story can impact on settlement and give rein to emotional dialogue that may lead to more satisfaction with the process of mediation.  There are other aspects of procedural justice that are also important to mediation i.e. respectful treatment; evenhanded or “neutral” treatment (acknowledging that neutrality is a contested term); trust and fairness.  All of these aspects of procedural justice have an impact on the process of mediation.  The theory can be used as a framework for improved party satisfaction; mediator practice and as a rationale for the wider use of mediation in our court system.  Procedural Justice needs to be researched in Australia and internationally to highlight its benefits to mediation.

The National Mediation Conference will be held on the Gold Coast from 11-15 September 2016.   They have issued a call for papers on the theme ‘“Thought, Innovation and Creativity: The Next Decade” .  The closing date for proposals is in mid-March.

Here’s a snippet from the conference page elaborating on their theme:

This year our conference theme is: “Thought, Innovation and Creativity: The Next Decade”. We will showcase: what we know and how we know it; think about our thinking; reflect on how we innovate, educate and train practitioners across the wide spectrum from self determination to determinative processes; how we can become more flexible and creatively facilitate processes in response to the diverse needs of our clients to provide a future of best practice in all we do to manage our own and other peoples disputes.

Attention all Dispute Resolution researchers

We are pleased to announce that the 2016 Australian Dispute Resolution Research Network Roundtable will be held at the University of Tasmania in Hobart in 2016.

The dates to set aside are Friday 9th December (starting in the late afternoon/early evening) until Sunday 11th December (finishing at noon). This is the beginning of school holidays in some states, so you might plan to bring your family to sunny Hobart 🙂

The Roundtable will follow the same format as in 2015:

• a focus on work in progress (ie, it’s not a conference, but a collaborative workshop around a table of supportive peers)
• a limited number of papers selected for in depth discussion
• two appointed primary commentators for each paper
• attendance is limited to people who are presenting or commentating upon papers
• a call for abstracts and expressions of interest in participating as a reviewer will be announced through this blog in 2016
• full papers must be submitted for distribution one month prior to the roundtable

Queries can be directed to the co-convenors Olivia Rundle (University of Tasmania) Olivia.Rundle@utas.edu.au or Kate Curnow (University of Queensland) k.curnow@law.uq.edu.au

In short: save the dates in your diaries and watch this space!

From our friends over at indisputably.org –  video recordings of presentations from a symposium on dispute systems design held  University of St. Thomas Law School in November this year.

http://www.indisputably.org/?p=7829

It’s relatively rare to see  academic work on this very important area of dispute resolution, so it’s well worth a look.

Enrolments are now open for a brand new offering at the University of Tasmania. The Graduate Certificate in Workplace Conflict Management is an almost fully online course aimed at anyone who manages people in a workplace. The advantage of this course is that it is specifically tailored for the workplace context. The four units are:

1. LAW555 Understanding Workplace Conflict
2. LAW556 Workplace Conflict Management Systems
3. LAW567 Supporting People in Workplace Conflict
4. LAW568 Managing and Decision Making in Workplace Conflict

We have structured the course so that students will be engaging in one unit at a time between February 2016 and November 2016. This is aimed to make it possible for people who work full time to be able to study at the same time and also complete the qualification in a one year period. The first two units are fully online, the second two are mostly online and each include one four day intensive, to be held in Sydney.

The Co-coordinators of the course are Associate Professor Samantha Hardy and Dr Olivia Rundle (both members of the Australian Dispute Resolution Research Network). Sam and Olivia have a long standing passion for conflict and dispute management education, research and training. We are both experienced in delivering quality online university courses.

Please follow the links above and here if you think this sounds interesting, and pass the news on to people you think might benefit from the course.

By Professor Laurence Boulle, Thomas More Law School, Australian Catholic University
  

This piece complements the post by Associate Professor Bobette Wolski introducing the Australian National Mediator Accreditation System (NMAS) published on this blog earlier this month. 

Background

Version 2.0 of the NMAS became effective on 1 July 2015. It is designed to enhance the quality of mediation practice by up-dating and simplifying the previous standards and provide some structure to RMABs and the MSB.

This version had a painful and protracted parturition. Drafting should be easy but having been involved in these standards, and in a similar system abroad, I know this is not the case.

The political context

It is challenging to keep all interest groups within the tent, particularly lawyers who approach the practice standards from a risk perspective and are concerned that any specificity in regard to the mediation procedures could leave them exposed. Indeed, the legal profession might yet elect to set up its own standards.

The indeterminacy of words

As HLA Hart told us decades ago, all words have a core of certainty and a penumbra of uncertainty. As soon as one starts drafting the core seems to shrink and the penumbra to expand. Drafters spend hours pondering over the meanings of words. Fortunately the NMAS is not a bilingual document.

Definitional challenges

We all thought, post-NADRAC, that definitional conundrums were behind us. Sadly they are not. Drafters, at the risk of their health, endlessly revisit definitions of ‘mediation’, ‘conciliation’, ‘blended process’, ‘impartiality’, and the like. Thanks to the work of a few radical revolutionaries ‘neutrality’ was not defined but banned from the discourse.

Organisational challenges

Volunteers work in bursts of frenetic activity, followed by weeks and months during which the momentum is lost. In the eventual pursuant meeting they start again: definitions, words, politics and the rest. Not to mention the ego challenges which surface in the interstitial crevices of drafting projects.

The evidence question

Has the NMAS improved quality in the provision of mediation? As usual the evidence is meagre. Will version 2.0 enhance knowledge, skills and knowledge in the area? Time might tell. But it might not. Social science surveys tell us that social science can only survey 20% of the variables in human variables. Mediation is a social science.

The result

For the above reasons all Standards, and all drafting, involve many compromises and many are reflected in the NMAS version 2.0. Now it’s over to the research scholars to analyse the contribution they make to dispute resolution practice. However please mind your definitions.