The Australian Family Law Council in its 2012 report into improving the family law system’s response to families from culturally and linguistically diverse backgrounds recommended, among other things, that a cultural competency framework be developed. It is important that those professionals and services providing family dispute resolution (FDR) consider how to do this effectively. Australian Law Reform Commissions have recommended that culturally responsive approaches to FDR be developed and implemented in a comprehensive, strategic and holistic manner. Good mediator practice with people from culturally (and religiously) diverse backgrounds is informed by guidelines or principles that emerge organically as a synthesis of mediator responses as they engage dynamically and reflectively with the people they encounter.

Culturally responsive mediators understand the fluid, fragmented and contested nature of culture, that it is a source of identity and power, and that it plays a role in the creation and resolution of conflict and disputes. As Sonia Shah Kazemi has observed, ‘mediation does not and cannot be situated in a cultural or normative vacuum; the disputants’ view of the world, their cultural identities, their universe of meaning invariably and indelibly shape the dispute management process.’ Cultural influences are not always easy to discern however, and are most often visible, as Kevin Avruch argues, when thrown into relief by the quality of difference. Culturally responsive mediators are aware that there is cultural difference, and that culture (and religion) may be powerful forces in people’s lives and conflicts; they perceive the cultural values and assumptions embedded in mediation and that they bring to its practice; and they are conscious that its processes may need to be adapted differently for each person. So whilst some ‘cultural knowledge’ may assist in knowing where to begin, the crucial attribute is responsiveness: listening carefully to each participant, engaging in conversation to understand their relational context and priorities and making fine judgments about the interventions to support the parties to achieve mediation’s broader goal of self determination (which itself will be culturally inscribed). Effective mediator responses to culture are ethical, situational and relational.

Responses are ethical decisions because they take account of the interests of others. Indeed, it is likely that every choice a mediator makes is likely to be an ethical one. They are contextual or situational, because the judgments are made in the moment in response to concrete situations. And they are relational, not only because family is the subject of dispute and we are all constituted by our relational contexts, but also because norms and expectations about family relationships are often central to the cultural identity of people from minority cultural and faith communities. They are also relational because, as identified above, cultural difference is often articulated through encounter and exchange with others. Adopting an ethical, situational and relational response to culture in mediation is important if culture is understood as a dynamic process of meaning-making, as Joan Laird notes ‘always contextual, emergent, improvisational, transformational, and political.’ Such an approach requires ongoing professional evaluation of the developing requirements of the parties, responding reflectively to their particular needs and circumstances throughout the mediation.

Western liberalism is increasingly challenged by the tensions between respecting diversity, protecting human rights and ensuring social cohesion. Although we better understand the significance of culture and religion in disputes and dispute resolution processes, we are less clear about the operation and significance of these informal processes within minority cultural and faith communities. We also know little about the experience of people from diverse cultural and faith backgrounds in informal dispute resolution processes that are part of the legal system. There has been much debate internationally about some of these issues, particularly whether recognition of religious alternative dispute resolution processes such as Muslim or Jewish arbitration tribunals would perpetuate inequalities, especially for women. This discussion has only just begun in Australia.

The University of Western Sydney will host a two-day public symposium Religion, Culture and Legal Pluralism on 14 & 15 September in Sydney, Australia addressing intersections between law, culture and religion in multicultural and multi-faith societies. Day 1 is hosted by UWS School of Law and explores issues raised by diversity and dispute resolution. This symposium brings together scholars of international repute from a range of disciplinary backgrounds to explore culture and religion in disputes and dispute resolution, the practices of faith and cultural communities in resolving disputes, and the challenges of publicly accommodating informal community processes. A particular focus will be a critical examination of the experiences of people from culturally and religiously diverse backgrounds in mediation processes, and what this tells us about the interplay between identities, laws and lives.

The presentations on 14 September are as follows:

• Professor Julie Macfarlane, Faculty of Law, University of Windsor, Canada, Divorce Practice among North American Muslims, and its Implications for Private Ordering and Public Adjudication in a Secular State
• Dr Samia Bano, School of Law, Centre of Islamic and Middle Eastern Law, SOAS, University of London, UK, The Politics of Culture and Muslim Family Law in the UK: Analysing the role of ‘Cultural Experts’ and the rise of ‘Islamic Legal Services’
• Dr Farrah Ahmed, Melbourne Law School, University of Melbourne, Australia, Religious ADR and personal laws in India‬
• Associate Professor Ann Black, TC Beirne School of Law, University of Queensland, Australia, The way forward: legal pluralism, dualism or keeping ‘one law for all’?
• Dr Morgan Brigg, School of Political Science and International Studies, University of Queensland, Australia, Beyond Accommodation of Cultural Diversity: The politics of recognition and relationality in dispute resolution
• Associate Professor Susan Armstrong, School of Law, University of Western Sydney, Australia, Beyond Accommodation: Recognition of and relationality with vulnerable parties in family mediation
• Dr Lola Akin Ojelabi, College of Arts, Social Sciences and Commerce, La Trobe University, Australia, Adopting cultural/religious dispute resolution processes in Australia: Which way forward for access to justice?
• Dr Ghena Krayem, Faculty of Law, University of Sydney, Australia, Beyond Accommodation – Understanding the needs of Australian Muslims in the Family law context
• Anisa Buckley, PhD candidate in Islamic Studies at the Asia Institute and Melbourne Law School, University of Melbourne, Australia, Muslim Identity and the ‘Religious Market’: Challenges facing Muslim women seeking religious divorce in Australia

Day 2 is hosted by UWS Religions and Society Research Centre and will focus on Shari’a in the everyday life of Muslims. The papers to be presented on 15 September include

• Professor James T. Richardson, Sociology and Judicial Studies, University of Nevada, Reno, Views of American Civil and Immigration Law among a Crowdsourced Sample of American Muslims
• Dr Jan A. Ali, University of Western Sydney, Australia, A Sociology Analysis of the Understanding and Application of Shari’ah in Muslim Everyday Living in Australia
• Associate Professor Malcolm Voyce, Faculty of Law, Macquarie University, Inheritance and Family Provision Law: A Contrast between Australian law and Islamic ideals as Regards Family Property
• Dr. Arskal Salim, Syarif Hidayatulah State Islamic University of Jakarta, Indonesia and University of Western Sydney, Disputing Women’s Property Rights in Contemporary Indonesia
• Ms Ashleigh Barbe-Winter, University of Western Sydney, Religious Accommodation in the Australian legal System
• Dr Arif A. Jamal, National University of Singapore, Singapore, Plurality, legal pluralism and Islamic law: the case of Ismaili law
• Dr Yuting Wang, American University of Sharjah, United Arab Emirates, An Exploratory Study of the Practices of Islamic Law in China’s Muslim Businesses
• Professor Adam Possamai, University of Western Sydney, Plurality and Shari’a in the everyday life of Muslims in Sydney

For more information reply here or email sm.armstrong@uws.edu.au

i am in Bali, enjoying the sun and the mountains, temples and beaches. I am struck by the calm and graceful people and their approach to life and culture

It seems a world away from the adversarial culture of many Australian

the question is how much does culture play in dispute resolution and is there a way to change the traditional adversarial culture of many Western nations?

Continuing our series introducing ADR network members we speak to Dr Susan Douglas.

Sue is employed as a Lecturer in Business Law, Faculty of Arts and Business, University of the Sunshine Coast. She also works with the Suncoast Community Service as a member of that organisation’s management committee and as a volunteer legal practitioner. Sue has been a member of the Maroochydore Neighbourhood Centre management committee for many years. Her particular contribution to university service is as a member of the Human Research Ethics Committee. She has an interest in socio-legal perspectives in dispute resolution and in qualitative research. 

 Why did you become interested in the dispute resolution field?

I first became interested in ADR as a social worker working in child protection. I conducted assessments around children at risk and would be called to attend the Children’s Court to give testimony. It was very obvious that the adversarial (albeit modified) process of investigating questions of risk was fraught with difficulties for the families at risk. At that time mediation was in its early years and as a movement promised the prospect of an alternative more appropriate to socio-legal issues in dispute resolution.

What is your particular area of dispute resolution research interest?

My particular area of interest is socio-legal perspectives in dispute resolution. My background in law and social work gives me a useful vantage point from which to consider the intersecting contributions of law and the social and behavioural sciences. Mediation, in particular, has really developed from the combination of the social and behavioural sciences and law. Practitioners and scholars recognise this, of course. I am always eager to spell out those connections, develop them and  learn from them. I am also keen on developing understanding of DR from the ground up and hence in gathering the perceptions and understandings of practitioners for developing theory. I like talking to mediators about their experience and how they make sense of their practice and I enjoyed this aspect the most in completing my PhD. 

Whose research has influenced you? Why/How?

I am particularly appreciative of the work of others in the ADR Research Network and am influenced by the direction of their research interests and enthusiasm. It’s wonderful to have a collaborative forum through which to share ideas and experiences and from which to gain support and encouragement.

I was particularly influenced by Hilary Astor’s work when I began pursuing research into mediation. Hilary’s work demonstrates great scholarship and a critical appraisal as well as commitment to developing theory for practice. Her work on neutrality in mediation was the starting point for my own investigation as the subject of my PhD. Established scholars and contributors such as Laurence Boulle, Dale Bagshaw, Ruth Charlton and Micheline Dewdney and many others have influenced me. I have been keen to understand models that are alternative to the classic, facilitative model and have of course been influenced by Winslade and Monk and Bush and Folger. Narrative and transformative models have particular resonance for me with social work practice and principles. I have also found that the mediators I have interviewed for research purposes like to include at least aspects of these models in their practice. 

What dispute resolution research are you involved in at the moment?

I am pursuing two projects in Family Dispute Resolution Practice (FDRP) with the Maroochydore Family Relationship Centre (FRC). I really enjoy the contact with the FDRP’s there and the manager/ co-ordinator of the service. One project is an investigation of what the FDRP’s see as ethics issues for their practice and another is an evaluation of a joint project between the FRC and the Suncoast Community Legal Service in providing legal advice.

Where would you like to take your dispute resolution research work over the next ten years?

Ten years is a long time ! I would like to be doing a series of qualitative studies with practitioners and see what issues emerge for them and from that survey larger populations around key issues. I would like to do more in relation to collaborative research projects. The Network certainly has the potential to harness the energy of participants into lots of interesting, engaging and relevant collaborative projects.

What advice do you have for emerging dispute resolution researchers?

It can be very isolating when doing a higher degree by research and there are perhaps very few research positions in the DR industry. It’s helpful to be part of a peer group for support and encouragement. The Network is also a forum for introducing and encouraging newer researchers, for sparking enthusiasm and new ideas, and for lending experience to emerging researchers. There is always so much to learn about research and new avenues to explore; it’s always emerging even for those with experience.

As part of our series of posts introducing ADR Research Network members, we meet Dr Lisa Toohey. Lisa is a Senior Lecturer and director of dispute resolution programs at the Faculty of Law at the University of New South Wales in Sydney. 

Many of us in the ADR community have been disappointed and horrified observers of the long-running family feud between a matriarch and her children.

There have been a number of attempts at mediation that we know of and, undoubtedly, many other confidential efforts to resolve this privately.

It has been very tantalising to watch. Talking with my ADR colleagues, it is clear that we have chosen to join this community because of our commitment to ADR principles and the opportunity they provide for durable resolution of disputes and the relationships they threaten.

It is tempting, in the face of very long drawn out and vitriolic proceedings, to see this case as a failure of ADR. However I have now worked my way through the elegant, carefully constructed and exceedingly thorough judgement of Brereton J[1] delivered last week and it has prompted me to revisit my thinking.

Those of us who teach ADR are careful to talk about repertoire rather than revolution. We explain carefully that choosing the most appropriate dispute resolution process will always depend on the interests of the parties. Sometimes uncovering and scrutinising the interests of the parties reveals that a private, consensual process does not satisfy the interests of at least one of the players. It seems a logical pursuit of its interests for a pharmaceutical company which owns the patent for the most profitable drug in the world to punish, aggressively, expensively and publicly, the generic brand threatening its patent. It has an interest, regardless of the expense, of giving a powerful signal to other would-be infringers to stay away. This could not be described as a failure of ADR. Rather it is an example of a party choosing, from the entire dispute resolution repertoire, the course of action which best meets its interests.

We are accustomed to families preferring harmony over disputes. Unless we are in the business of selling gossipy magazines, it is painful and unwelcome to watch the public disintegration of family life. Most of us would prefer to believe that familial love is so strong that it can find a way to resolve conflict with a generosity of spirit and a willingness to respect and honour differences.

This case challenges us to question those assumptions and our preference for peaceful resolution. Brereton J’s unpicking of the long chain of events reveals a conflict of values. In one corner we can identify the values of power and control – in the other corner the values of access to justice – feeling fairly treated within a framework of due process. The interests of each party in family harmony became, as the situation unravelled, subordinate to the values expressed in their very public dispute. Reading the story it is clear why the parties could not abandon the fight.

It is not a failure of ADR. It is the parties pursuing their powerfully held and conflicting interests, with none willing to sacrifice these interests in the pursuit of peace and family harmony.

Unpleasant as it is to be the unwilling observers of such an intimate and expensive spectacle, it is also useful to stand back and reflect. The reflection is useful and encouraging. It provides confirmation for us as ADR proponents that ADR remains alive and well; an important part of the dispute resolution repertoire. It just doesn’t suit all of the parties all of the time. The answer is always in the interests.

[1] See http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWSC/2015/646.html?stem=0&synonyms=0&query=rinehart&nocontext=1

Many mediators have their own strategies in conflict resolution and these may depend on their personality, style and personal mediator philosophy.  How mediators practice can include known communication skills, such as open questions, summarizing and reframing.    Increasingly researchers are interested in the many other mediator strategies such as use of humour, improvisation and intuition.  Such mediation strategies can be controversial as they don’t usually appear in mediation standards or training programs.  However, these kinds of strategies may be just as effective as the traditional communication interventions. For example, whether a mediator can use humour to lighten the mood, improve rapport and open participants to new ideas. Improvisation can be used by mediator to move away from the set steps of mediation in order to be flexible and fluid to meet parties’ needs. Intuition operates in a mediation to assist the mediator to make strategic choices informed by years of experiences.  All of these kinds of strategies could be said to be part of “artistry” in mediation practice… where some mediators show a more sophisticated approach to how they mediate.
As research in the mediation field matures I think researchers will increasingly be interested in unpacking how mediators with experience practice to inform both mediator education and to share skills in our community of practice.

The Financial Services Ombudsman is one of the largest  (if not the largest) providers of dispute resolution services in Australia.  It is an independent non-government organisation that is funded by its members, who are financial services providers such as insurance companies, banks, superannuation funds, brokers, and financial advisers.  Their services, which include conciliation, expert appraisal and determination, are free for consumers.

I always recommend these jobs to my students as a way of gaining amazing insight into the dynamics of disputes in a high-volume, structured dispute resolution system.  The FOS are currently advertising for both conciliators and case managers.  See http://fos.org.au/about-us/careers-home/

Dr Olivia Rundle, Senior Lecturer, Faculty of Law, University of Tasmania

Olivia is a full time academic employed to research, teach and contribute to administration and community engagement. She finds research the most satisfying part of her job and enjoys sharing her knowledge gained from her research with her students (both undergraduate and research higher degree students), fellow researchers, university colleagues and the broader community.

 Why did you become interested in the dispute resolution field?

My interest was first sparked by a “baptism of fire” as a baby lawyer, when I found myself representing a client in the newly created “conciliation conference” process at the Magistrates Court. I had absolutely no idea what my role should be or what to expect from the conciliator. I had observed some mediations at the Supreme Court, but apart from that I had received no training at all in dispute resolution processes other than making submissions in court room advocacy. I don’t think I had even been formally educated in negotiation skills, let alone theory. My style of representation ended up being directed by a combination of my training as a spokesperson for my client in court and my open, conciliatory and trusting (also young and naïve) personality. My client was not disadvantaged by my openness, as the information shared was going to be revealed in any event (if it hadn’t already), but I felt very embarrassed when after I had made my “opening statement” the defendant’s lawyer merely said “I am instructed not to say anything”, and refused to engage with the process. There really wasn’t anything the conciliator could do about that. There was plenty of scope for reflection on that experience! I took myself along to be trained as a mediator. Eventually my interests in mediation, particularly its role within the formal justice system and the lawyers’ perspective and role within it, led to my PhD investigation of the Supreme Court of Tasmania’s mediation programme. In particular, I inquired about the perspectives, practices and roles taken by lawyers within that process. This topic continues to fascinate me.

 What is your particular area of dispute resolution research interest?

Legal practitioners and dispute resolution, including the ironically “adversarial” attitudes that the dispute resolution and legal professions often have towards one another (despite so many legal professionals practising as DR professionals). I have an enduring curiosity about what motivates lawyers to approach dispute resolution in the ways that they do. There is so much complexity there – including the professional identities and obligations of the participants.

 Whose research has influenced you? Why/How?

Professor Julie Macfarlane came to a National Mediation Conference during my PhD process and she had just published her book The New Lawyer. She went out of her way to be welcoming and supportive of me as a baby researcher, and this made a big impression on me. Of course, her work is so important and influential in the area of lawyers in dispute resolution, that I cannot help being influenced by it. She was also explicitly encouraging of me as an empirical researcher. I am hoping to make good on that with new projects in the next year or so! Other international names that spring to mind as having an influence (by being read and cited a lot) are Carrie Menkel-Meadow, Judith Resnik, Dame Hazel Genn, and Bobbie McAdoo.

 Closer to home I think that the work of Hilary Astor, Laurence Boulle, and Nadja Alexander have provided a solid foundation of theoretical understanding upon which my work has been based. My close collaborator Assoc Prof Samantha Hardy continues to influence me with her enthusiasm, “can do” attitude and willingness to maintain a list of “things to do” that neither of us can hope to achieve in ten lifetimes! Sam stepped in as a mentor for me when I was floundering with my PhD work. We eventually built upon the ideas that flowed from our conversations in our book Mediation for Lawyers. I think that our joint projects ever since demonstrate the benefits of being generous to someone who is emerging in your field – we have an egalitarian and honest working relationship that means we continue to push one another to produce good work.

 What dispute resolution research are you involved in at the moment?

My second area of particular dispute resolution research interest is in ways of improving dispute resolution practice. In particular, how to resolve ethical dilemmas, competing underlying values, and how to overcome our own unconscious biases that are there simply because we are human and are limited by our own life experience! My current research project, which has taken over my sabbatical this last six months, is inspired by the last of these. I am working on a co-authored book that will be a resource for any professional who works with people (yes, that broad!). Our target audience includes mediators and lawyers and the book will have specific advice for them. The book draws together social science and legal resources about the life experiences, legal treatment and conflict experiences of people of minority sexuality (gay, lesbian, bisexual, pansexual), sex (intersex) and gender (transgender, gender queer). We focus on individuals, couple relationships and parenting. Researching and writing this has been one of my most challenging projects to date and I have learnt so much. I am now getting excited about the difference that I hope the book will make for professionals and their clients, by raising awareness of the pervasiveness of cisgenderism, heterosexism and biologism and how these assumptions are inappropriate for many people. The project idea came from some research that Samantha Hardy undertook which found that among her small sample many mediators interviewed thought that they provided a great service to their clients of minority sexuality, yet demonstrated attitudes that suggested they had not. Also, the clients who were involved reported low satisfaction with the services that they had received. This demonstrated a need for better understanding among the profession. The book has been a long time coming, but I hope that it will be worth it!

 Where would you like to take your dispute resolution research work over the next ten years?

“After the book” I want to return to my focus on lawyers in dispute resolution and undertake more empirical studies to identify the drivers of lawyers’ behaviour in dispute resolution processes. I hope that over the next decade I will make contributions that lead to improvement in the field, by supporting professionals who work with clients in connection with their conflict. This includes legal practitioners, mediators, conflict coaches, and managers. Greater inter-professional understanding, critical analysis of practice, and practical suggestions are all contributions that we can make as researchers.

 Another goal that I have is to provide support for emerging dispute resolution researchers, both informally and formally as a supervisor. I am by no means a “senior” in the field, but I believe that we should step up out of our comfort zone early in our career and be accessible and genuinely supportive of others. This is how we will surround ourselves with colleagues who are prepared to give us rigorous yet kind feedback and who we truly admire. This is why I am so committed to being part of the Australian Dispute Resolution Network.

 What advice do you have for emerging dispute resolution researchers?

Tell people when you find their work helpful, ask them those silly questions, go along to conferences and other gatherings of people who research in dispute resolution. The people you meet when you are a baby researcher will become your mentors, friends, colleagues and collaborators.