I just read an article by Jen De Vries called “Merit: A trump card or a card trick” and it got me thinking about the sticky business of assessing the “merits” of a dispute. This week I am placing myself in the role of an Associate Judge and assessing the oral advocacy skills of final year law students. In applying the assessment rubric I am struck by the influence of factors such as confidence, innovation, bravery, humour, or more basic human engagement in the persuasiveness of an advocate. Even though a judicial officer aims to objectively assess the merits of the legal cases presented, they are in the end human beings who may be influenced by their perceptions of the parties or advocates, previous experiences with the people or dispute, their level of hunger or comfort, their general mood or mental wellbeing, the time of day, and how bored they are feeling. I will admit that the final observation is influenced by my hearing seven lots of the same set of moot issues this week! The process of “objective” decision making is inevitably influenced by “subjective” factors, simply because decision makers are beautiful, messy, not-so-rational-as-they-think human beings.

There are seldom any rules in non-judicial dispute resolution about the basis upon which decisions ought to be made. Therefore, the “merits” of the dispute are not necessarily the driving factor in decision-making. Mediation and conciliation processes have scope to support individualised justice, in keeping with values such as responsiveness and self-determination.

In consensus based decision making the decision makers do not aspire to objectivity, as they are the parties themselves and they are expected to act out of self interest and in accordance with their personal priorities. Granted, those self interests may include being accommodating to the other party, offering the other party what they say they need, or pursuing outcomes that don’t reflect the “objective assessment of the merits” of the particular dispute in question. It is true that sometimes parties may appeal to “objective merits” when arguing that their own perspective is more valid than that of other parties. This is reflective of the fact that the concepts of “merits” and objectivity are foundational to the perception of justice.

Legal representatives will often provide a “voice of reason”, a “reality test” to counteract their client’s deficit of being “too close” to the dispute. I leave for now a radical thought questioning the perception that a person’s intimate human experience of a dispute is deficient or problematic. There is a strong assumption from the legal perspective that the “proper” way to analyse a dispute is from an objective point of view. It is in fact essential that lawyers provide a legal analysis of their client’s problem in order that the clients take that into account in deciding how they want to deal with their dispute. This is a professional responsibility, and I do not intend to challenge the idea that this is central to the legal professional service.

Third party dispute resolution professionals in consensus based processes, such as mediators and conciliators, may also form their own view about the “merits” of a dispute. Just like judges and lawyers, their assessment will be influenced by many subjective or non-merit based factors. Unlike judicial officers, they do not have the benefit of having heard evidence curated and presented according to the rules of evidence that are designed to support revelation of the objective truth. Dispute resolution practitioners ought to be mindful about how they use their own objective assessment of the merits. In particular, being wise to the non-objective factors which are likely to have influenced that assessment is quite important.

A quick search has revealed the following articles that might offer further ideas about these issues:

Lola Akin Ojelabi and Mary Anne Noone, “Ensuring access to justice in mediation within the civil justice system” (2014) 40(2) Monash University Law Review 528.

Howard Gillman, “What’s Law Got to Do with It? Judicial Behavioralists Test the “Legal Model” of Judicial Decision Making” (2001) 26 Law & Soc. Inquiry 466

Duncan Webb, “The negotiator’s ethic: fair minded self-interest” (1993) 23(4) Victoria University of Wellington Law Review 255.

I look forward to other people’s thoughts about these issues. Please contribute in the comments below.

LEADR & IAMA have announced their annual conference offering on their website – http://www.leadriama.org/kon-gres-home

The format is the same as previous years – the conference will move between Sydney, Melbourne, Hobart, Auckland, Brisbane, Adelaide and Auckland.

In a very provocative and wide ranging piece, Hilary Sommerlad argues that the ethic of care originating with Carol Gilligan and developed by difference feminists since the 1990s has undermined the ethic of justice, largely through reliance on arguments that have facilitated the development of mediation and other forms of restorative justice and promoted legal pluralism: The Ethics of Relational Jurisprudence, (2014) 17 Legal Ethics 281.

Sommerlad claims that Gilligan’s ethic of care provided a language to argue for a change in ‘the dominant ideology from individualist to one that is interconnected … from a right-based focus to a focus on both care and rights/justice, from power-over to empowering’ (citing Leslie Bender, ‘Changing the Values in Tort Law’ (1990) 25 Tulsa Law Journal 759, 907). Difference feminists understood knowledge as contextual and embedded in experience and situation, and urged that legal methodologies be developed to recognise intimacy and connectedness and to permit empathic perspective taking, such as mediation, or less adversarial lawyering.

Sommerlad’s argument is grounded in a deep understanding of recent legal philosophy and history. She challenges the arguments developed by difference feminists based on Gilligan’s ethic of care for their ahistorical nature and tendency to naively romanticise community and care, failing to acknowledge that ‘care can be a most insidious form of control’.

She also condemns difference feminists’ omission in not recognising the flexible and contextual nature of much common law reasoning, and subsequently their failure to ‘engage with the contingency of law’s claimed formalism and autonomy, at the moment when it was so clearly being challenged’.

Whilst there is much value in these observations, Sommerlad’s own failings appear in her critique of the link between the ethic of care, neoliberal delegalisation and a shift to therapuetic jurisprudence that has characterised many western legal systems.  Whilst greater reliance on informal legal processes may undermine access to justice and diminish rights, Sommerlad is not able to establish mediation’s complicity in this outcome.  She relies on outdated and unsubstantiated claims that mediation ‘fails to take account of the gendered power imbalance’ and research that indicates that ‘aggressive advocacy and strict reliance on doctrine and procedure’ achieves better outcomes for women clients, at least in family law.

Mediation is no panacea, but a more nuanced and empirical appraisal of its role is required before it can be held responsible for the broader failings of the legal system. Further, whilst rights are clearly important, especially to those who have few, many will prioritise their relational connections, their emotional wellbeing and their bank balance in preference to aggressive advocacy. For some it will be more important to be empathically heard, and to listen with their whole being, and so to recognise the full humanity of the other. Mediation offers this promise. Gilligan’s ethic of care remains instructive.

7th Asia Pacific Mediation Forum Conference will be held  10-12 February, 2016, in Lombok, West Nusa Tenggara, Indonesia

The conference theme is – Synergizing Eastern and Western Constructs of Mediation towards Better Understanding
and the conference organisers  have said that its purpose is

to explore the richness of the diverse approaches to mediation, to nurture better cross-cultural understanding and to enhance collaborative dispute resolution processes and settlements in the region.

Early-bird registrations and abstracts are now due on October 31st, 2015.

The full details can be found on the APMF website – www.apmf-jakarta.com

Having myself attended the APMF Conference in Bangkok several years ago, I can certainly attest that the conference is an amazing experience, both intellectually and culturally.  It is well worth attending!

For those in New Zealand – a scholarship opportunity:

FairWay Resolution’s Board has announced the establishment of the $10,000 FairWay Resolution Anne Scragg Scholarship to encourage continuing professional development within the dispute resolution profession. The scholarship package includes a cash contribution of up to $10,000 towards further study/research and will be awarded annually commencing in 2015.

Announcing the scholarship at a function to mark Anne Scragg’s retirement after nearly 30 years’ service to the dispute resolution sector, FairWay Resolution chief executive Greg Pollock said the award aims to continue her legacy to the profession.

…The scholarship is available for anyone working or studying in the dispute resolution
profession, including undergraduate or postgraduate students, new professionals or experienced dispute resolution practitioners. As well as a cash grant to support professional development, the scholarship provides the recipient with the option of working for a 12 week period with FairWay either before or after their course of study or research.

Applications for the 2015 year close on 1 August 2015. Full details about the scholarship criteria are available at www.fairwayresolution.com

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.