The benefits of mediation to society, individuals and the justice system are numerous and these make mediation a process fast increasing in popularity and usage in many quarters. There has been an increase in the use of mediation in the courts, the community sector and even within government. In Australia, mediation quality is promoted through the National Mediator Accreditation System (NMAS) Approval and Practice Standards. Research, however, shows that ensuring quality in mediation goes beyond provisions of the NMAS partly because applying the standards to ethical and practical issues that may arise in a particular context may bring to the fore conflicts between the standards. An example of such a conflict is between the requirements of self-determination and a mediator’s ethical obligation to terminate or withdraw when it appears to the mediator that the proposed outcome is so unfair that it shocks the conscience. Maintaining a balance between the two creates a further dilemma for mediators. How does a mediator address the fairness of a proposed outcome in order to make a decision regarding termination or withdrawal? To address this dilemma, mediators go beyond the NMAS, reaching out to, and making decisions based on personal values, other professional values (and obligations which they may be bound by in any case) and sometimes ask the question: Can I live with this?

What values inform [your] decision-making when faced with ethical dilemmas in mediation?

See: Justice Quality and Accountability in Mediation – a report

There is now a groundswell call for increased adoption of ADR in legal education to develop non-adversarial practice in law students.

For example, in 2014 the Productivity Commission has recommended the inclusion of ADR in legal education (see chapter 7).

Whilst acknowledging that legal education must meet the needs of both students and a diverse array of stakeholders the productivity commission has also recognised the need for improved provision of ADR education in a law degree.The future of legal education arguably requires that ADR teachers are recognised and valued for the unique contribution that they provide to legal education.  ADR teachers provide a combination of theory and practice in dispute resolution that enriches legal pedagogy.

Many universities now include ADR as a mandatory course.  We all need to support the mandatory inclusion of ADR in legal education to ensure the development of non-adversarial practice in law

We are very excited to announce our Call for Papers for the 4th ADR Research Network Round Table to be held at the Faculty of Law, University of New South Wales, on Saturday 12th and Sunday 13th September 2015.

The round tables are designed to encourage a collaborative and supportive research environment in which papers are workshopped and discussed in detail.   Papers in draft form are distributed ahead of time to participants, to enable thoughtful and constructive quality feedback. On the day, speakers are given up to 30 minutes for presentation, with equal time for discussion.

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

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

– papers take a scholarly, critical and/or empirical perspective on an area of dispute resolution;

– the round table will include a spread of participants across stages of career; and

– a well-balanced range of work will be presented at the round table to provide diversity, to develop the field and to enable cohesive discussion.

Participation is on a self-funded basis.

Deadline for Abstracts:      30 March 2015

(300 words maximum, to adrresearchnetwork@gmail.com)

Date for notification:       15 April 2015

       Draft Papers due:            1 August 2015

Please see the full Call for Papers document for more detail: Call for Papers 4th ADR Research Network Round Table

2014 was a busy year for the ADR Research Network in terms of research output.  To mark January 2015, here is a quick snapshot of some of textbooks produced by the network last year.  We will follow up with a post about 2014 journal articles in the not too distant future.

David Spencer and Samantha Hardy, Dispute Resolution in Australia: Cases, Commentary and Materials (Thomson Reuters, 3rd ed 2014).  Find out more about this book here.

Michael King, Arie Frieberg, Becky Batagol and Ross Hyams, Non-Adversarial Justice (Federation Press, 2nd ed 2014).  Find out more about this book here.

Rachael Field, James Duffy and Anna Huggins, Lawyering and Positive Professional Identities (LexisNexis Butterworths, 2014).  Find out more about this book here.

The Australian Centre for Justice Innovation (ACJI) and the Australian Institute of Judicial Administration (AIJA) are hosting a lecture on the Productivity Commission Access to Justice Arrangements Inquiry. The report, released in December last year, had made many recommendations regarding dispute resolution and access to justice, including increased use of ADR by the courts.

The lecture will be delivered by Dr Warren Mundy, a Commissioner of the Productivity Commission and the Presiding Commissioner on the Commission’s Access to Civil Justice Inquiry.

In this lecture, Dr Mundy will reflect on the findings and recommendations of the Productivity Commission’s inquiry into Access to Civil Justice. In particular, he will explore the application of economics to the examination of civil justice policy and institutions and discuss future challenges to improving access to civil justice.

This lecture precedes a full day seminar on 26 June 2015, jointly convened by ACJI and AIJA. Further details will be provided at a later date on the AIJA and ACJI websites.

A flyer for the lecture to be held in the Melbourne CBD at 12.30 pm on Friday 13 February 2015 an be downloaded here.

The Dispute Resolution Branch of the Queensland Department of Justice and Attorney-General are offering a scholarship for two young people, one male and one female, to gain mediation skills and assessment for National Mediator Accreditation.  The Scholarship honours the memory of Jack Cranstoun, who was one of their staff.

Applications close 6th February 2015.

Full details here:

https://conflictresolvers.files.wordpress.com/2015/01/jack-cranstoun-scholarship.pdf

By Katherine Curnow and Professor Laurence Boulle

In conjunction with Professor Michael Weir and Dr Tina Hunter, we are looking into private landholder perceptions of the negotiations they have had with resource companies about conduct, compensation and access agreements (CCAs) as part of a broader project to design an optimal regulatory structure for land access. The negotiations we are examining occur in connection with the heavily regulated activity of coal seam gas extraction (CSG). Resource companies with authority to extract CSG frequently need to access private land in order to conduct extraction related activities. There has been growing concern about the impacts on the use and enjoyment of private land by its owners and occupiers (landholders) from the long term (often for decades), co-existential use of the land by resource companies and landholders. While a landholder cannot refuse access to their land, Queensland legislation (and that in many other Australian jurisdictions) requires resource companies to enter into CCAs with landholders.

Our analysis of the complex environment in which CSG extraction activities occur has lead us to conclude that promoting the public interest and not simply the interests of the negotiating parties, managing information asymmetry between the parties and appropriately allocating the cost of negative externalities resulting from CSG development activities warrant regulatory intervention in relation to CCAs, their negotiation and disputes while they are on foot. A key objective of any regulation must be to promote the integrative dimension of the negotiations. For our full analysis of these issues, see our forthcoming article in the Australasian Journal of Natural Resource Law and Policy:

Boulle L, Hunter T, Weir M, Curnow K, “Negotiating Conduct and Compensation Agreements for Coal Seam Gas Operations: Developing the Queensland Regulatory Framework” 17(1) AJNRLP

Interviews we have conducted with landholders have produced evidence of a distributive dimension to many CCA negotiations. Landholders perceive that resource companies use power: including through withholding information and utilising a “big stick” approach to the negotiations, as well as add-ons in the negotiation of CCAs. We are, therefore, exploring how to encourage timely and fulsome information exchange and the use of power for creative problem solving. We are analysing the suitability of both express regulatory obligations (such as in the Native Title Act 1993 (Cth) in relation to the negotiation of indigenous land use agreements) as well as NUDGE-type strategies.

How, in your view, can the integrative dimension of negotiations be effectively promoted, whether through regulation or otherwise?

As we start 2015 (with bush fires and floods in Australia) I would like to post about a topic that I think is of real importance to mediation. We all know that ADR and in particular mediation, is commonplace in our justice system, mainly due to the positive affect mediation has on lowering matters reaching court. What I believe gets less attention is how mediation is practised. Too readily the rhetoric of mediation is accepted by courts and policy makers without a critical examination of how parties are treated in mediation. The experience of mediation for parties is just as crucial as the lowering of the matters listed for hearing in courts. One issue of importance is whether parties have the opportunity to express emotion in mediation. How do mediator’s respond to emotion? Do they see emotion as having a place in mediation? What interventions do they practice to engage with emotion?

As part of a research project we asked 16 mediators about emotion and found many open to engaging with emotion in mediation, but having a rather unsophisticated approach to the theory and practice of emotion in this context. Well meaning but largely uninformed they did have a number of strategies that they used including using the ground rules, private sessions and summarising and rephrasing. If you are interested check out this article for more details of our research:

Douglas K and Coburn C, ‘Attitude and Response to Emotion in Dispute Resolution: The Experience of Mediators’ (2014) 16 Flinders Law Journal 111

I’d be interested to hear other peoples’ views of the place of emotion in mediation.