This month the ADR Research Network blog will feature a series of occasional posts from our members responding to the following questions:
What book or article has most influenced your approach to researching dispute resolution and why?
What book or article would you most recommend to beginning researchers in the dispute resolution field?
We hope to offer both new and established researchers some helpful tips for further reading!
Photo: The Circulation Desk, 1946 by Bob Kent, State Library Victoria, (www.slv.vic.gov.au)
This is the third of a series of posts on papers we are sharing from the 2015 ADR Network Roundtable #ADRRoundtable held last month in Sydney.
In this post, Pauline Roach describes her work into developing a healthy workplace dispute resolution culture. Pauline began her career as nurse and midwife, working in several different hospitals in Australia, England and Scotland. Following her return from a 4 year trip overseas, she began a career with the NSW Public Service. Pauline has worked in the dispute resolution field for 20 years and has managed the Community Justice Centres (CJCs) Sydney and Bankstown, where she provided ongoing training and supervision to mediators and staff.
In 2003, Pauline was appointed to the position of Grievance Network Coordinator at the Roads and Traffic Authority (RTA) where she completed a major review of the RTA’s Grievance Resolution Policy. In this role she established the grievance resolution network and the RTA Workplace Mediation Panel. In 2013 she was appointed to the position of Consultant at Transport for NSW.
Pauline completed the Master in Dispute Resolution at University of Technology, Sydney.
Workplace disputes are disruptive, expensive and often linger in one form or another for long periods of time. This post looks at anew workplace mediation model developed and implemented at (an anonymous for this post) large public sector organisation in New South Wales. The post is in two parts: The first part discusses strategies and structures implemented to respond to workplace disputes. The second part provides details the new hybrid mediation process developed and analyses the outcomes from this mediation process.
Strategies and Structures
The organisation implemented a strategic framework to help develop a corporate culture and context where the principles of ADR could succeed and are accepted by staff. This has involved staffing, policy development and the education of staff. It also includes engagement with the union to encourage and support their members to participate in the process. The organisation, employee and union representative have a shared benefit in the successful resolution of a dispute, the employer has a functioning workplace and the employee has a job. Both groups acknowledge this understanding of the shared benefits and this removes many barriers to the ADR process succeeding.
Policies such as the Code of Conduct outline an ethical framework for the standards of work, conduct and responsibilities for all staff, managers and contractors. The use of ADR processes to resolve workplace disputes are integrated into its culture and policies such as the Code of Conduct. The Code of Conduct highlighted that staff must be actively involved in resolving their disputes. Through on going education staffwere aware of the ADR procedures available to them, which assist in the resolution of workplace disputes at the local level. The organisation established a grievance resolution network which provided staff and managers with the tools to resolve workplace issues locally, in a timely manner and as close as possible to the origin of the dispute. The aim is principally to assist in the early identification and management of a dispute before it had a negative impact to the workplace. This included the development of an individual dispute resolution strategy (DRS) for each dispute. A broad range of ADR processes are available to assist in the resolution of disputes:
For a great description of many of these terms, see this NADRAC document.
Grievance Contact Officers (GCOs) were appointed from across the state for a three year term on a voluntary basis. GCOs assisted staff with workplace communication difficulties and/or interpersonal disputes or other workplace concerns. Where possible they encouraged staff to:
To support this policy direction, the organisation has also established a Workplace Mediation Panel. This panel consists of independent consultants who are skilled in the provision of a range of ADR processes.
The Hybrid Mediation Model
The hybrid mediation model implemented at the organisationhas three distinguishing features:
Bearing in mind the importance of retaining or rebuilding a working relationship following resolution of less complex bullying complaints, the organisation also refers these cases for ADR intervention. In these cases a thorough intake interview is also undertaken to access the power imbalance between the disputants and to ensure the disputants and the manager understand the process and reality check outcome options.
Resolution of workplace disputes requires a strategic and explicit cultural change rather than a piece meal application of ADR processes in isolation. The organisation has implemented a strategic framework and consistent approach, which developed a culture and context where dispute resolution can succeed and be accepted by staff. Through a review of policies and staff education programs, staffs are aware of their responsibilities under the Code of Conduct and various policies. In a climate that supports dispute resolution, the organisation has successfully developed a dispute resolution process which accommodates its unique culture and business.
This is the second paper from those presented at the 4th ADR Research Network Roundtable (#ADRRoundtable) at the University of NSW, Sydney last month. We are keen to share the wonderful and challenging ideas discussed. At our roundtables and in this blog we aim to advance the dispute resolution field by presenting high quality, critical dispute resolution scholarship. Next year we’ll be meeting in Hobart, Tasmania and if you’d like to join us (and perhaps visit the equally challenging MONA) , we will be posting information about how to be part of the next meeting here on our blog.
Please feel free to comment here on or over on Twitter @ADRResearch.
This post and the next one feature discussion of the important area of workplace dispute resolution. Today’s post is by Olivia Davis. Olivia has worked in ADR since 2001 and is currently Quality Manager for the Financial Ombudsman Service. She is completing a Master of Dispute Resolution at UTS and is interested in bringing ADR skills into the broader workplace context.
We can measure an individual’s literacy level, but can we measure their ability to deal with conflict productively? This post discusses the concepts that need to be considered before developing a methodology for measuring ‘conflict literacy’.
Bringing mediation skills into the broader workplace context enhances workers’ ability not only to deal productively with conflict, but to cultivate positive relationships, negotiate more persuasively and include multiple perspectives when problem-solving. Key skills from the mediation skill set are listening, questioning, reflecting, reframing, and summarizing, as well as the ability to manage emotions and power imbalances, and reality-test proposed outcomes. The literature around ‘conflict competence’ adds to this list the skills of multivalent thinking, emotional intelligence and impulse control.
The contribution of this post is to combine current thinking about definitions of literacy with current thinking about conflict, to develop a new concept that is more nuanced and complex than ‘conflict competence’, as it is outlined above. To arrive at an understanding of what is meant by the term ‘conflict literacy’ as proposed by the author, the phrase is broken down and each word looked at separately.
The word literacy is commonly attached as a suffix (eg; media literacy, financial literacy, scientific literacy, computer literacy etc) to a particular field as a shorthand way of indicating an individual’s level of knowledge about, and ability to navigate, that particular subject area effectively. As technology and social media have pervaded our daily lives in ever-increasing ways, our understanding of what it means to ‘be literate’ has been forced to expand beyond the simple ability to read and write, to include such skills as the ability to critically evaluate sources of information, filter for relevance, understand which signifiers are valued, as well as produce relevant content. Literacy has always been about the ability to participate effectively in a social environment, but it now has a ‘meta’ aspect which demands that we be able to interrogate the frame the environment sits within, and critique our role as co-creaters of that environment.
Looking at ‘conflict’ it is notable that current thinking sees conflict not as something to be avoided or suppressed – or even resolved – but rather as an energy force that is part of the human experience, and is ever-present, whether latent or manifest. Conflict theorists have applied the principles of complexity science to better understand the dynamics of conflict, how to harness its energies and how to intervene effectively. Complexity science sees all elements in a system as having mutual causality; everything happens in a context, and there are no clear-cut ‘victims’ and ‘perpetrators’. More complex perspectives allow participants to evade the tyranny of binary oppositions and create more satisfying agreements.
The term ‘conflict literacy’ combines all these concepts; it is more than ‘conflict competence’, and goes further than the parameters of the mediation skill set. Is conflict literacy achieved by bringing mediation skills into the workplace? The answer would have to be: not on their own, no.
As part of our occasional series profiling ADR Network Members, we profile James Duffy, law academic at Queensland University of Technology Law School in Brisbane.
Research into ADR sits alongside other research I do in the fields of psychology and law and the scholarship of teaching and learning. This is balanced with the teaching of lots of undergraduate law students at QUT.
2. Why did you become interested in the dispute resolution field?
I spent two years working for different judges in the Queensland Court system (1 year in the Queensland District Court and 1 year in the Queensland Court of Appeal). Being in and around the courts exposed me to the difficult life events that many people encounter. The human and emotional costs of taking a matter to court appeared to be really taxing upon people. I became interested in forums that parties could use that would allow them to speak their peace and be listened to by another person, without the expense and formality of court proceedings. In many instances, taking a matter to court seemed like overkill to me. It reinforced the idea that the substance of legal disputes was important, but the way they were resolved (procedurally) was just as important.
3. What is your particular area of dispute resolution research interest?
I’m interested in the psychology behind ADR forums and how the answer to a legal problem is often found in a non-legal solution. I’m not sure that I will ever be able to say that my particular area is X, or I have specialised knowledge in X area of ADR. I like to be a generalist, and know a little bit about a lot of different areas. At thisstage, I haven’t done a PhD, so that might focus things a little bit.
4. Whose research has influenced you? Why/How?
I like reading work by authors that has a more literary feel to it. Carrie Menkel-Meadow is always good to read. Marjorie Silver is the same. I find myself citing Laurence Boulle a lot, because he has already written about every idea that I seem to come up with (which is actually quite frustrating when you think you have stumbled across a novel idea.) I genuinely enjoy reading work from other members of the ADR research Network. When you have had a chance to hang out with other academics and get to know them a bit better, reading their articles is fun. I’ve lost count of the number of times I’ve though to myself “shit, I wish I had that idea first, how clever!” More generally, I like reading articles or books where the authors have a beautiful way with words – particularly those that flout the usual rules for peer reviewed journals.
5. What dispute resolution research are you involved in at the moment?
I have two articles in the back of my brain that are waiting to come out. One on the neuroscience surrounding emotion in ADR forums, and another suggesting that positive psychology principles explain why people mediate. I’m looking forward to a bit of connected research time to commit these thoughts to paper.
6. Where would you like to take your dispute resolution research work over the next ten years?
I don’t know what I’m doing next week, let alone in ten years time. Quantitative empirical work.
7. What advice do you have for emerging dispute resolution researchers?
Have a coherent story you can tell yourself (and others) about why dispute resolution research is important. Depending on the University faculty you are part of, dispute resolution research may not be viewed as favourably as other areas. Secondly, if you are from a legal background, try and skill up in research methods apart from doctrinal research. Good empirical research is very publishable.
This post presents an overview of a paper by myself and Rachael Field which I presented at the recent ADR Research Network Roundtable, entitled ‘Learning to Play the Language Game: Confronting the Hidden Challenges of Family Mediation’.
Mediation is becoming more and more prominent as a mode of dispute resolution in family law matters. There are many benefits that can be claimed for mediation as a mode of resolving family disputes, including its informality, flexibility and less confrontational nature. These benefits make mediation a potentially suitable method for resolving many types of post-separation issues. However, even while offering parties the opportunity of consensual, non-adversarial dispute resolution, mediation can also present them with significant challenges.
The greatest of these challenges perhaps arise where parties in family mediation must negotiate on their own behalf, since lawyers are either not present or are excluded from the process. Mediation in the absence of legal representation requires parties to effectively articulate their own stories, interests, issues and concerns, as well as potentially those of their children. Participants in family mediation are expected to be reasonable, engaged and effective negotiators at a time in their lives – post-separation – which is, in many cases, one of the most chaotic, difficult and emotional.
There are, therefore, obvious challenges facing unrepresented parties in family mediation, particularly those with little prior knowledge of the process. It might be thought that these problems are counteracted by the relatively informal character of the mediation environment. However, the family mediation environment, despite its relative informality, is structured by underlying conventions and expectations that are often opaque to inexperienced participants.
Ludwig Wittgenstein’s notion of a language game offers a way of thinking about the underlying conventions in different forms of social discourse. Wittgenstein notes that language fundamentally influences – and, indeed, constructs – the ways in which people interact. Language is linked to social behaviour and to the social dynamic. Effective communication, then, becomes a matter of understanding the applicable social context and knowing how to play the relevant language game.
Mediation researchers and practitioners need to pay attention to the language game of mediation in order to help parties navigate the process. Party preparation can play an important role in enabling inexperienced participants to engage effectively in family mediation and protecting vulnerable parties from being disadvantaged by hidden expectations. Helping parties understand the language game of family mediation represents a critical new focus of family law practice.
Monash University is pleased to announce that ‘The Future of Civil Procedure – Innovation and Inertia’ forum will be held on 17 February 2016 as part of the Civil Justice Forum (17 – 19 February 2016).
Times are changing – how is the civil justice system keeping up? Join us for a discussion about how the legal system is evolving in its dynamic environment. This exciting forum will cover key issues in the modern legal environment, such as the role of courts in a changing environment, the impact and use of technology on law and litigation funding and regulation.
Participants at the forum will include judges, magistrates, practitioners, policy-makers, academics and other experts working in civil justice, in courts and tribunals, and throughout the justice system more broadly.
The program for the forum is under development, but we invite you to save the date to attend this event. Please email lisa.wulfsohn@monash.edu if you wish to be put on our contact list.
We look forward to seeing you at Monash University in 2016.
Monash University is pleased to announce that Civil Justice Forum’s Academic Focus Conference will be held on 18-19 February 2016 as part of the Civil Justice Forum (17 – 19 February 2016). The conference was previously known as the Civil Justice Teaching and Research Conference.
Join us for a stimulating discussion about researching and teaching civil procedure and dispute resolution. The conference will enable participants to share valuable knowledge and perspectives on topics such as research relating to class actions, litigation and dispute resolution and challenges and innovation in teaching civil procedure.
Monash University invites submissions on topics relevant to civil procedure research and teaching. Please email a short abstract to lisa.wulfsohn@monash.edu by 30 October 2015.
The program for the conference is under development, but we invite you to save the date to attend this event.
We look forward to seeing you at Monash University in 2016.
photo courtesy State Library of Queensland
Here at the ADR Research Network we are proudly hosting our 4th Round Table at UNSW, Sydney this Saturday 12 & Sunday 13 September. We have 15 papers, each with a commentator and facilitator, two plenary sessions on developing ADR research and around 20 excited attendees, ranging from Professors of ADR in Australia and Canada to ADR professionals and PhD students. Lots of time has been left for discussion of papers and informal chats. Papers discussed are works in progress and we aim to harness our collective expertise to make the dispute resolution research presented even better.
We will be live tweeting the event for our Twitter account @ADRResearch and are posting some paper summaries here in our blog. Papers presented include
Stay tuned!
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On Friday 4th September 2015, LEADR and IAMA, two of Australia’s largest dispute resolution service providers completed the final stage of their amalgamation. LEADR and IAMA formally integrated on 1 January 2015. Previously, they had worked as separate organisations, seeking to improve awareness and quality of ADR practices in Australia. To an extent, they were also in competition with each other to attract membership fees, and to provide training programs to members of the public. The final part of their amalgamation was to announce a new name and logo. The new name is “Resolution Institute”. The logo is pictured below.
Because organisations like the new Resolution Institute offer so many services and purport to do so many things, I’m always keeping my eye out for little statements that neatly sum up what they really do. I haven’t been able to find a branded Resolution Institute constitution yet, but I suspect that it will contain a purpose/object section similar to the LEADR & IAMA constitution.
The Objects of the company are to:
With the people sitting behind this new organisation, there is every reason to think this merger will work. One question (and perhaps a little controversial) I’d like to propose to blog readers is this:
Are there downsides to LEADR and IAMA merging?
A recently published article came across my desk today and I thought it was worth mentioning here in our blog, because it covers a newer form of dispute resolution in a highly commercialised area of law: takeover disputes. I admit I don’t know much about takeover law and maybe that’s because so many of us involved in dispute resolution are not commercial law-type people. That’s a shame because commercial law and ADR should and do go hand in hand.
Ian Ramsay, Professor of commercial law at the University of Melbourne, has recently published this excellent article on takeover panels as an alternative to litigation for resolving takeover disputes. The Australian Takeover Panel has operated since 2000 and was established to reduce tactical litigation by target companies wanting to resist takeover bids. The takeover panels, according to Ramsay, has proven a low- cost and efficient forum for the resolution of takeover disputes and is used by both private parties and regulators such as ASIC.
The piece is worth a read, whether you are commercially- minded or not.
The Australian Dispute Resolution Research Network 