This post is by John Zeleznikow from Victoria University and was workshopped at the ADRRN Roundtable at Latrobe University on 9-10 December 2019.

Whilst there is no generally accepted definition of Online Dispute Resolution (ODR), we can think of it as Using the Internet to perform Alternative Dispute Resolution (ADR). 

ODR is a natural evolution of the trend towards using alternative approaches to litigation across a wide range of civil, commercial, family and other contexts.

One reason for this phenomenon is that average trials are getting longer and more complex, and the cost of pursuing traditional legal recourse is rising. A second reason for the trend towards ADR lies its growing acceptance by mainstream conflict systems, including court systems; this acceptance has trickled down to affect the attitudes of litigants themselves. 

ODR provides solutions for cases that do not justify long, complex trials – such as in the case of low-value transactional disputes, in cross-border and cross-jurisdictional contexts. The unsatisfied purchaser of a Madonna CD on eBay is more likely to prefer an online process for achieving redress rather than pursuing litigation with the seller, who may be based in another country. 

While the focus of ADR has largely been on face-to-face processes, incorporating technology into ADR processes has quietly been commonplace for a long time. Primarily, this has taken the form of using the telephone as a simple measure for convene people who cannot or should not be together in the same room, whether owing to geographical situations or to extremely vitriolic situations, or those where violence has occurred. 

As Internet technology has become widespread, much attention has been directed at using these tools for dispute resolution. In some ways, ODR is a natural evolution of convening over the telephone. Technology now offers parties different levels of immediacy, interactivity and media richness to choose from. Through some platforms, parties can choose to communicate through text; through others, they can convene in real-time video, allowing them to see each other and, possibly, a mediator. 

Recently, ODR has moved beyond Ecommerce – ODR is being used for non-financial disputes. In 2002, Zeleznikow suggested that the internet could prove invaluable in supporting the growing number of pro se litigants.   Today, ODR is being suggested as being capable of supporting Self Represented Litigation. This however brings forward the issue of whether Self Represented Litigants can sufficiently understand legislation, cases and the technology to adequately represent themselves in dispute resolution forums.  

Zeleznikow’s initial approach, in the Split-Up system, for providing ODR support about the distribution of marital property following divorce in Australia was to use machine learning to provide advice about BATNAs (a BATNA is used to inform disputants of the likely outcome if the dispute were to be decided by decision-maker e.g. judge, arbitrator or ombudsman) re the distribution of marital property following divorce. 

Despite using Artificial Intelligence, it involved the development of 94 Toulmin argument structures to model the domain as it existed in 1995. Twenty-five years later, the theoretical principles behind AI software have not changed.  But computer hardware is much. cheaper and data can be much more easily stored.  This has led to the development of ‘quicker; systems’, which the community has seen as ‘more intelligent’.

The Split-Up system was viewed as futuristic work – for example the media speculation about its use on the Charles and Diana Divorce in the London Daily Telegraph of July 4 1996 and in a ten minute program on GTV9’s Current Affair on Monday 26 August 1996. 

Whilst the Split-Up system provides advice about BATNAs, it is not a Negotiation Support System.  The Family Winner System provided advice to disputing parents on how they could best negotiate trade-offs.  The disputing parties were asked to indicate how much they valued each item in dispute.  Using logrolling, parties obtained what they desired most.  The Family Winner software won its heat of the ABC (Australia) TV series science show The New Inventors. 

The discussion on the show raised issues on how to appropriately use ODR. In particular Do we use ODR as a tool to support decision-making or should the ODR system be fully automated? What should be the level of automation of ODR systems?  Many Artificial Intelligence and ODR followers believe in using robots and developing systems that are fully automated.  But doing so leads to ethical problems as well as losing one of the major benefits of Alternative Dispute Resolution – the ability for disputants to craft their individual solution.   

The automation vs decision support conflict raises issues on the purpose of ODR systems and how users interact with ODR systems.

Given the wide variety of possibilities, it should be clear that there is no universally best approach or technique for providing online dispute resolution.  Rather, there is an eclectic bag of methods with properties and performance characteristics the techniques vary significantly depending on the context. What all of the selected ODR Systems have in common is that they provide an alternative to litigation providing a mechanism by which parties involved in a dispute can communicate over the Internet. Many of the illustrated systems are specialized to provide the best approach for a particular path to resolution.

In trying to develop a classification system for Online Dispute Resolution systems, we believe that a truly helpful ODR system should provide the following facilities:

1. Case management: the system should allow users to enter information, ask them for appropriate data and provide for templates to initiate the dispute.  Currently most clients of Victoria Legal Aid phone the organisation to seek help.  It is expensive and time consuming for telephonists to enter data.  And mistakes are often made.  Clients should be able to enter their data and also track what is happening during the dispute as well as being aware of what documents are required at specific times; 
2. Triaging: the system should make decisions on how important it is to act in a timely manner and where to send the dispute.  This may be particularly important in cases of domestic abuse or where there is a potential for children to be kidnapped;
3. Advisory tools: the system should provide tools for reality testing: these could include, books, articles, reports of cases, copies of legislation and videos;  there would also be calculators (such as to advise upon child support) and BATNA advisory; systems (to inform disputants of the likely outcome if the dispute were to be decided by decision-maker e.g. judge, arbitrator or ombudsman). Other useful advice that could be included are copies of the relevant Acts, links to landmark cases, relevant books and reports and videos providing useful parenting advice;
4. Communication tools – for negotiation, mediation, conciliation or facilitation.  This could involve shuttle mediation if required.  For many ODR providers, the provision of communication tools is their main goal;
5. Decision Support Tools – if the disputants cannot resolve their conflict, software using game theory or artificial intelligence can be used to facilitate trade-offs.  Family Winner and Smartsettle provide such services;
6. Drafting software: if and once a negotiation is reached, software can be used to draft suitable agreements.  Drafting plans (such as parenting plans) once there is in principle agreement for a resolution of a dispute, is a non-trivial task;

No single dispute is likely to require all six processes.  However, the development of such a hybrid ODR system would be very significant, but costly and very time and resource consuming.  A total system would require us to construct the appropriate systems 1 to 6, and the ultimate solution is to make sure that all the systems are capable of talking to each other.  But such a system would be an important starting point for expanding into a world where AI is gainfully used.

Well, what a fabulous 48 hours were had at Latrobe University in Melbourne, Victoria on Monday 9th December and Tuesday 10th December 2019! The ADRRN Roundtable is a deliberately rigorous and kind gathering of dispute resolution related researchers who are brave enough to share their work in progress for face to face review by peers. Especially delightful is the growth in participation by early career researchers, including PhD candidates. It seems that word has got out that there is something pretty special on offer.

Associate Professor Lola Akin Ojelabi of Latrobe University and Jackie Weinberg of Monash University were our most excellent hosts. Lola is a founding member of the network. Jackie has completion of her PhD in sight. Jackie came along to the ADRRN Roundtable earlier in her PhD journey and mentioned at the Roundtable opening the value she now places on that experience.

Papers presented and discussed

Many of the people who presented work at the Roundtable have prepared posts that will be rolled out here over December and January. Two posts have already been made – if you missed them see Rosemary Howell and Emma Lee’s The story of a collaborative journey – through the lens of reimagining the conflict narrative using lessons from Indigenous Australians and Emilia Belluci’s The future of ODR: what are the benefits and drawbacks of F2F negotiation, and its applicability to future ODR design?

Handover of Leadership Roles

Reflective of the evolution of the network, we are pleased to announce a change of roles from 2020.

• Dr John Woodward will be the new President of the ADRRN.
• Nussen Ainsworth will be the new Editor in Chief of our Blog from February 2020.

These changes have been reflected on our About page.

For a refresher, see also and explainer of our approach to membership.

When is the next Roundtable?

The 9th Roundtable of the ADRRN will be held in February 2021 in Newcastle, New South Wales, Australia. The exact date will be announced in early 2020 when the Call for Papers will be posted on adrresearch.net.

For an indication of what kind of content is considered relevant for ADRRN Roundtables, see the 2019 Call for Papers and our list of papers workshopped at the 8th Roundtable. We are a broad interest group, drawing together work from a range of disciplines and processes, provided they fall into the spectrum of processes that resolve disputes (other than the formal trial process) or research about conflict and its management.

This post is by Dr. Emilia Bellucci, Deakin Business School, whose paper was workshopped at the ADRRN Roundtable at Latrobe University on 9-10 December 2019. This is the first of a series of posts related to the Roundtable.

ODR systems provide support to negotiations by facilitating communication online and in some circumstances even provide solutions to the dispute.  An ODR is considered successful if the outcome represents a similar or better outcome to an ADR process, inferring ODR processes should mimic F2F negotiations.  In a recently published paper (Bellucci et al 2019), my colleagues and I report on an ODR study whereby we replicated Boland and Ross (2010)’s finding that the propensity to resolve a dispute is directly related to the EI (Emotional Intelligence) of disputants.  Boland and Ross’ (2010) study involved F2F (Face to Face) negotiation, whereas our negotiations were conducted online.  Underlying this paper was the assumption that F2F is the preferred format of negotiation, and therefore our findings supported the idea that a successful ODR was one which replicated F2F mechanisms.

In this research I want to challenge this assumption.  Why is F2F negotiation the preferred option for negotiation? Do F2F negotiations achieve better outcomes?

In attempting to answers these questions, we need to understand the seminal differences between communicating electronically and in person. These include the use of verbal and non-verbal cues to express ideas, solutions and feedback. Whilst verbal communication is often supplemented by non-verbal cues, such as body language and facial expressions, I am most interested in the effect of non-verbal communication (which is typically missing in an ODR) on a negotiation. 

Facial expressions (smiles, frowns), crossed arms, learning forward or back, micro expressions are all examples of non-verbal communication.  These expressions, together with the spoken word may reveal a disputant’s joy, anger, sadness, happiness with the negotiation.  Whilst emotions revealed during the negotiation may be used to move a negotiation forward, resolve impasses and settle on amicable solution, they can also be used to deceive and unfairly influence the negotiation.  

Emotions expressed during negotiation vary depending on the context of the dispute, and include nasty emotions (anger, jealousy), existential emotions (anxiety), emotions resulting from positive and negative life events (disappointment, happiness), and sympathetic emotions (gratitude). Research suggests positive emotions tend to contribute positively to the negotiation, while negative emotions contribute negatively to a negotiation. 

In the F2F medium, disputants reveal emotional leakage through verbal and non-verbal cues.  Whilst emotions should not be ignored in negotiation, we should not allow emotions to distance the negotiation away from the issues in dispute. Emotions should be managed so outcomes from a negotiation are reflective of the human experience.

F2F negotiation is preferred for two main reasons: 

1. F2F is the richest form of communication. It allows for opportunities to clarify interests and positons of the parties and allows for quick feedback and opportunities to reassess options to resolve the dispute successfully. Without F2F, many fear they will accept a solution which may not reflect the best solution. 
2. Lawyers view ODR with a healthy degree of scepticism, due predominantly to a computer’s lack of creative decision making and inability to understand complex issues. There is a place for ODR as a support to communication (ie video conferencing, email, document management etc) and to resolve small disputes such as in e-commerce (ebay, paypal) where outcomes are set. 

So how can apply the positive aspects of F2F negotiation to an ODR?  Can we have the best of both worlds? 

Here are some ideas for future research: 

1. ODR can filter language initially by expressing negative emotion to more appropriate language conducive to creating a positive environment. Either the software or negotiators may be asked to soften their language for these purposes. Software can also manage a disputant’s emotional responses by using feedback screens to illicit emotional responses,  after which, the system can deliver responses to help disputants manage their emotion. These designs are in research currently. What may be some of the obstacles to mainstream use? 
2. Research (one study only) suggests there is no difference between F2F and computer negotiations, specifically relating to how emotion is expressed. People were found to supplement text in ODR with emoticons, capital letters or simply wrote more thoughtfully and clearly to supplement their communication.  Future work may involve the design of an empirical study to compare the effectiveness and communication models of ODR and F2F.
3. It is perceived that ODR processes do not support the law authentically by providing another avenue for legitimate negotiation. How can we change this perception?  

Dr. Emilia Bellucci is a Senior lecturer in the Department of Information Systems and Business Analytics at Deakin University, Melbourne Australia.  Her major research area is in Online Dispute Resolution Systems with a particular focus on electronic support of family law negotiation and mediations. Emilia completed her PhD in 2004, under the supervision of Professor John Zeleznikow, and resulted in the “Family Winner” computer program which was designed to settle family law disputes. Family Winner was the focus of much media in 2005 with a number of newspaper articles, radio station interviews and television appearances including a win on the science and technology television program, ABC’s “New Inventors”.  

Since then, Dr. Bellucci has conducted research in e-health, small to medium enterprises and has recently returned to Online Dispute Resolution with a renewed passion to make justice (through negotiated outcomes) and ODR accessible to all. Dr. Bellucci has published 16 refereed international journal articles, 3 book chapters and 29 refereed conference papers.  She has attended and presented her research at numerous international conferences and workshops. 

Dr Rosemary Howell and Dr Emma Lee

Picture credit: Creative commons presencing.org

The annual ADR Research Network’s Roundtable is a welcoming, safe place for academics in the conflict resolution space to share new ideas about research, explore different ways to join the dots and gain constructive peer feedback about structure and substance.

It was the prospect of this environment that encouraged the two of us to take the next step of exploring the ideas we first shared in our Kluwer Blogpost in July this year. That post drew on an ABC News story about Dr Lee and the remarkable dispute resolution process – ‘love-bombing’ – which was part of the movement to reset the relationship between Aboriginal Tasmanians, government and the broader public.

That was our first effort at collaboration.

Coming from very different academic disciplines and cultural perspectives, we saw the blog as a cautious first step in developing our professional relationship and a beginning to our joint exploration of the potential for a new approach to dispute resolution built on lessons to be learned from our First Peoples.

The response to this first step was encouraging and affirming. We continued to build our own working relationship with the idea of developing a more formal and academic framework for the ideas we were workshopping.

We proposed to the organising committee of the Roundtable that we would develop a piece of work titled ‘Reimagining the narrative and its special place in Conflict Resolution using lessons from Indigenous Australians.’

As the central themes of our paper we identified some important elements of conflict resolution that are missing from the literature namely:

• we have failed to undertake significant research to explore and identify the persuasive role of the narrative in conflict resolution; and
• we have overlooked the resources of our First Peoples whose oral tradition has provided masterful examples of narrative power

Unsurprisingly, mainstream mediation (which is dominated by mediation in the shadow of the law) adopts a mediation approach dominated by facts and legal arguments where parties are silenced and their narratives unrecognised and unheard. The narrative does not feature and has been consigned to the box in which narrative mediation resides – sidelined as a specialised field of mediation and never to emerge as narrative in mediation.

Research from many fields demonstrates that the narrative is important.

In our paper it was initially our intention to present research from the fields of education, psychology and the social sciences demonstrating the significance of the narrative and the cost of its absence in conflict resolution research.

Our collaboration took us to an entirely different place.

Over the course of our many interactions we came to appreciate the absence of an intersection between the worlds we occupy and between our cultural experiences. It became very clear that if this collaboration were genuinely to add a new piece to the dispute resolution narrative we needed to proceed very slowly and respectfully. It was not an outcome that would arrive fully formed as the result of simply combining our work.

It was remarkable to discover that the expectation that the Roundtable would offer a safe space to present ideas was not shared by both of us. Before proposing our paper we had not recognised and explored the extent of our differences. It became clear this was what we needed to do before we could produce any formal outcome from our collaboration.

So the formal, linear discipline and process of writing about conflict resolution emerged as an impediment. It did not offer a safe way to explore and learn from the conflict resolution learnings springing from unimaginable suffering and cultural appropriation experienced within the framework of an oral tradition. It was a revelation to us both that we could not just assemble our own learnings about the narrative into a single formal document.

We realised that if we were going to find a way to join our stories we needed to slow down the collaborative process. We agreed, with support from the organising committee, that our presentation would be in two parts. The first part would lead participants through the initial concept of the paper – setting the scene for the role of the narrative and why it matters. It would then begin to explain how the collaboration process showed us we needed to do things differently.

Dr Lee would then join the conference via a pre-prepared video in which she explains her perceptions around safety and cultural sensitivity and delivers an invitation to the academics present to support the journey of collaboration that has begun.

We are hoping that the commentators assigned to the session will create a space where the audience engages in contemplating the value of the journey and develops an appetite to discover what the next steps will be.

The authors

 Dr Emma Lee

Dr Emma Lee is a trawlwulwuy woman of tebrakunna country, north-east Tasmania, Australia.  She is an Aboriginal and Torres Strait Research Fellow at Centre for Social Impact, Swinburne University of Technology.  Her research fields over the last 25 years have focused on Indigenous affairs, land and sea management, policy and governance of Australian regulatory environments.  Dr Lee has published in diverse journals ranging from Biological Reviews to Annals of Tourism Research.  She is the 2018 recipient of the University of Tasmania’s Foundation Graduate Award and has won prestigious fellowships to study in Europe and Asia.

  Dr Rosemary Howell

Dr Rosemary Howell is a Professorial Fellow at the University of New South Wales and a Senior Fellow at The University of Melbourne. She has studied Negotiation and Mediation with the Harvard Faculty and worked as a Teaching Assistant to Professor Roger Fisher at Harvard and during his Australia-wide training programs.

Her doctoral work explored ‘How Lawyers Negotiate.’

She has a particular interest in developing experiential learning models for the teaching of Negotiation and Dispute Resolution which draw heavily on the role of the narrative.

Written by Danielle Hutchinson. First posted on the International Mediation Institute  Blog in November 2019.

Initiated by IMI, the GPC Series 2016-17 was a collection of 28 conferences held in 22 countries across the globe. It was conceived as an opportunity for members of the commercial community to come together and engage in dialogue about commercial dispute resolution (DR), as well as collect actionable data that could be used to challenge the status quo.

A suite of eight GPC North America reports has been created as part of an IMI project funded by the AAA-ICDR Foundation. These reports focus on the findings from the data collected at GPC events across North America between 2016-17. All the reports will be made available on the IMI website.

The GPC North America suite of reports present findings from data that has never been analyzed before.

Clear features of each city have become apparent and similarities and differences between jurisdictions have surfaced. Distinct and actionable recommendations in relation to the findings have emerged. These recommendations have the potential to make a significant impact on the future of commercial DR in North America.

Some results may be expected. Others may be quite surprising.

There are seven reports that present local findings for each city that hosted a GPC event in North America. Each of these reports explores the characteristics of users of DR in each jurisdiction, how the market responds to their needs, obstacles and challenges facing commercial DR and provide a vision for the future.

The final regional report is the culmination of the findings and provides a comparative analysis of jurisdictions across North America.

The complete suite of reports includes:

• The GPC Austin Report
• The GPC Baltimore Report
• The GPC Los Angeles Report
• The GPC Miami Report
• The GPC New York Report
• The GPC San Francisco Report
• The GPC Toronto Report
• The GPC North America Report

We look forward to your response to these reports in the ongoing Global Pound Conversation and thank the delegates at the North American GPC events for providing the insights that may prompt us to challenge the status quo.

For further information about the GPC and its supporters please see under ‘Research’ in the main menu above. Learn more about the GPC >.

As editor of the Blog for November, I have invited ‘pracademics’ and leaders in the field of ADR to contribute a blogpost to share the interesting work they are doing.

Our third guest is Catherine Davidson, who has practised as a commercial litigator and mediator both nationally and internationally. Catherine has mediated over seven hundred commercial and workplace disputes. She is a trainer for the ADC and has delivered negotiation and mediation workshops in a number of law schools in India and China.

I invited Catherine to write a piece about her work in designing collaborative commercial processes to meet the both the needs of her clients and the outcomes sought.

Over to you, Catherine…

by Catherine Davidson

This blog is a reflection on working collaboratively with two separate clients in terms of co-designing the process, documentation and roles.

I had a week where I was approached by two clients wanting commercial facilitation. Interestingly both came from the major project space and each was made up of multiple parties. They both wanted a collaborative process and signalled they were street smart about how to approach disputes from the outset.

Seeing the design of the process as a two-way street, I ‘jumped on the bus’. I now share what I noticed and what we did.

Case Study 1

The first approach was by the engineer who was one of the four parties to a Project Development Agreement (PDA) for a hydroelectric scheme. The project was at its very early stages. The relationship with one member of the consortium had broken down, the others were of the view that this party had not delivered on its obligation to secure the land for the project.

Trust had broken down. Attempts to negotiate independently had failed.

They all agreed that one party’s interest needed to be ‘sold’ to the others or vice versa, so the landowner could then pursue the project. Unfortunately, perceptions about the commercial value of the project had been a major issue.

Reshaping the existing relationship was key to the commercial outcome for the project.

This client actively collaborated in the design of the process. He invited me after initial discussion to do a ‘reverse brief’ scoping process, documentation, timing and costs. There were to be no lawyers at the facilitated meeting.

We edited my Facilitated Meeting Guidelines document so he could insert language that was specific about intention — ‘with a view to resolving how the parties will proceed with the project; independently via one party buying the other’s interests or together’. I noted he had been quite specific about the options for resolving. And suggested it might be helpful to add a sentence that includes “or as the parties might otherwise agree” in order to leave scope. This invitation was declined and spoke to client need for autonomy.

Expectations about individual engagement were also explicit ‘with a view to achieving a mutually acceptable commercial conclusion to the current misalignment.’

There was similar collaboration when designing the process. After the shape of the preliminary meetings was agreed a clear expectation was set that we would only proceed to the next stage of a group meeting if each party had indicated a “sufficient intent to get a deal”. It was also agreed that during the face to face meeting we would document agreement as it developed.

Case Study 2

The second approach was from the lawyer for one of the parties to a Contractor Joint Venture for a commercial project involving a contract for the supply of a product found to be defective.

In requesting the facilitation, she highlighted her client wanted repair of the defective product under obligations in the contract. She felt a facilitated meeting with all parties and lawyers while the Director of the foreign supplier was visiting Australia could be a ‘circuit breaker’ for the dispute which was ‘brewing’. The defective product was fundamentally important to the construction of the project, so preservation of this relationship was key. This lawyer was experienced in these kinds of disputes was on the front foot about timing and tailoring an opportunity that could accommodate an ‘emotional’ party.

This client was also very clear about the purpose of the facilitation process. She expressed a desire to understand why the supplying party — a long-established family company — consistently had an emotional response to requests under the contract. She wanted to link the potential of that understanding with ways to preserve and improve the contractual relationship. The language of the Guidelines document remained more open and she prioritised the meeting as an essential part of the supplier’s visit. Timeframes were tight and having everyone cooperate to make time was a challenge with long lines of delegated authority autonomy was an issue.

Reflections

There was a common driver that saw both name commercial facilitation as the desired process.

Both disputes arose from what Geoff Sharp calls relational contracts where the “contracts are underpinned by a relationship requiring more than simply what is written in the contract – and often it is that trust and confidence is vital for the business of the contract to work” (Sharp, 2019).

Some of the nine specific characteristics of a relational contract were referenced in the language of expectation used by both clients.

These two experiences of ‘street smart’ or what has been identified in previous blogs here as dispute-savvy clients meant I was able to design a sophisticated process to meet their needs (Litchfield & Hutchinson, 2016).

Both clients were very pragmatic and practical about their limitations as outlined and communicated regularly with me. Each sought practical ways to manage hurdles in the process design. The bigger picture was always about the commercial success of both projects.

Working with clients in an organic and client-led way, I found these collaborative experiences engaging and fulfilling. Working with clients who are agile and proactive is refreshing. I asked for client feedback and was pleased to note appreciation of the “sophistication of approach” and that I was “client-focused and responsive”. I later stumbled upon the Mixed Mode Taskforce checklist of criteria for mixed modes process design. I recommend this very helpful checklist for all those interested in working collaboratively to design commercially viable dispute resolution processes for dispute-savvy clients.

Australasian Dispute Resolution Research Network member Claire Holland will deliver a webinar for Mediators Beyond Borders International (MBBI) in December. Please register by the link below if you are interested to join.

Join our conversation on Co-creating Mediation Models: Adapting Mediation Practices When Working Across Cultures by Claire Holland on Thursday, December 5, 2019, at 5:00 PM ET. In this webinar, Claire will discuss mindful approaches to meeting the needs of the participants of the mediation process.

Click here to learn more and to register.

Claire Holland is the Director of the James Cook University Conflict Management and Resolution Program, a Nationally Accredited Mediator under the Australian Standards, a mediator for the Queensland Civil and Administrative Tribunal (QCAT), and a certified conflict coach with Conflict Coaching International.

Mediators Beyond Borders International works to bring mediation and peace skills to communities around the globe so that they can, in turn, build a more peace “able” world. To this end, MBBI organizes initiatives to address three essential objectives: Capacity building, promoting mediation through advocacy, and delivering consultancy services.

As editor of the Blog for November, I have invited ‘pracademics’ and leaders in the field of ADR to contribute a blogpost to share the interesting work they are doing.

Our second guest is Marguerite Picard who developed the MELCA Method – a collaborative approach to Family Dispute Resolution. Marguerite is an Accredited Family Law Specialist who teaches collaborative practice, and presents in Australia and internationally. She is a member of the international and federal collaborative practice associations (IACP & AACP) and president of the Victorian Association of Collaborative Professionals.

I invited Marguerite to write a piece about her work in Collaborative Practice.

Over to you, Marguerite…

By Marguerite Picard

Well-meaning lawyers everywhere are familiar with the game of chasing ex-spouses round and round, to bring them to the negotiating table to reach a settlement. It is frustrating and costly.

An ex-spouse might be afraid because of issues of power, control and violence, or they may not have had the support or the time to move towards accepting the end of the relationship. There are many other reasons why people dread the thought of any form of divorce negotiations. Working out practical arrangements at the end of a marriage or relationship isn’t something anyone looks forward to. We can all understand these realities.

However, there are very good reasons for people to engage in self-determined conversations about arrangements for their children and their property after separation, because the research tells us that people who make their own decisions, with or without facilitation, are overwhelmingly the happiest with the outcomes. Perhaps, if people recognised that reality, they would not run the risk of other people making decisions for them, as a result of their refusal to have sensible and early conversations.

The 2018 Report of the Family Court tells us that 20,000 applications are issued in the court each year. As it happens that number represents only some 30% of separating couples.[1]. It seems that the majority of couples know that a court is not the place to be, although how much of that is about being priced out of legal services is unknown.

There has been a decrease in the number of court applications for children’s matters since 2006, which reflects the establishment of Family Resolution Centres. It has been shown that 73.6% of couples show high levels of satisfaction with this form of mediation. [2]

Of those who have no assistance with negotiations about children’s living arrangements, 89% are satisfied with the arrangements they make. [3]

It is property matters that now dominate the caseload of the Family Court, which is due mainly to the Court gaining jurisdiction over de facto property matters in 2009 (Victoria).  It is interesting and telling that people find it easier to co-operate about their children than they do about their money.

[1] Kaspiew, Moloney, Dunstan and De Maio: ‘Family Law Court Filings 2004-5 and 2012-13’ (2015).

[2] Kaspiew, Gray, Weston, Moloney, Hand & Qu: ‘The Australian Institute of Family Studies Evaluation of the 2006 Family Law Reforms: Key findings’ (2009).

[3] Kaspiew, Gray, Weston, Moloney, Hand & Qu: ‘The Australian Institute of Family Studies Evaluation of the 2006 Family Law Reforms: Key findings’ (2009).

If you would like to contact Marguerite or find out more about Collaborative Practice, please visit her website.

I am re-posting Dr Rosemary Howell’s Kluwer Mediation blogpost from September. It is an important indicator of how sophisticated ADR has become. No longer simply an alternative to litigation, but also an embedded mechanism that supports employee self-determination as early as possible before workplace issues escalate.

Thanks for sharing, Rosemary!

By Rosemary Howell

Mediation is certainly featuring in the international news right now.

This week Giuseppe De Palo posted an enthusiastic message about workplace conflict resolution. He congratulated the Office of the Ombudsman for UN Funds and Programmes as it prepares to establish a world-wide panel of mediators to make mediation “the first, natural step to take in pursuing informal resolution to workplace conflict”.
This is an achievement to be celebrated. However, it is disappointing that early intervention processes which precede mediation, particularly in the workplace environment, are not getting the same enthusiastic press.
The concept of early intervention is not new. Indeed I have written about it in an earlier blog. Readers may recall reference to the Civil Litigation Research Project (CLRP) in the early 1980s which investigated the apparent explosion of disputes in the civil justice system in the USA.
The project discovered that disputes are not ‘found objects that arrive fully formed’. It validated earlier research  analysing the stages of a dispute. It demonstrated that, even before a dispute begins to form, there are opportunities for early intervention which offer significant savings in time, cost and, perhaps most significantly, human relationships.

The Dispute Pyramid – Adapted from Miller & Sarat 1980

Despite the research and the conversations, until now I have been unable to find useful examples of early intervention at work, especially in an institutionalised environment where we can track uptake, outcomes and party responses.

A case study
Recently I was fortunate to discover a useful case study which adds some interesting and valuable enhancements to the early intervention process.
Introduced two years ago by the Department of Health & Human Services (DHHS) in Victoria, Australia (whose vision is to achieve the best health, wellbeing and safety of all Victorians so they can lead a life they value) the program, as with all effective programs, has been evolving as the Department evolves. It uses the language of facilitation. Services are provided by a workplace facilitator. The program has not been widely publicised. I was fortunate to discover it via my daughter, an accredited mediator, facilitator and coach who has recently been appointed to the role of workplace facilitator. Through her recommendation to investigate this well-thought out and continually evolving program, I have found a case study to explore.
Located within the Employee Wellbeing and Support space, the program (which supports 11,000 people!) was created in response to requests for a pathway to resolve matters involving inappropriate behaviour and conflict as an alternative to the usual formal Departmental processes. This approach has led the Department to offer a range of options called “employee wellbeing supports”.

The Organizational Ombudsman
Initial development was based on the concept of the Organizational Ombudsman drawn from the Institutional Ombudsman Association (IOA) framework.
At a high level the Organizational Ombudsman role involves both supporting parties and promoting institutional learning about enhancing conflict resolution processes.
This contemplates that in interactions with parties the emphasis will be on:
• Listening and understanding.
• Identifying interests and developing options to support them.
• Coaching parties towards direct engagement.
• Facilitating informal resolution and referring parties to other more formal avenues for resolution where this becomes necessary.
Beyond the parties, the role also offers independent insight to the organisation about opportunities for systematic change. It is a ‘source of detection and early warning’ of new issues that require the organisation’s attention.

The role of the Workplace Facilitator
It has been wise of DHHS to use the IOA framework. It is steeped in relevant research, has international recognition and support and brings a useful legitimacy to the role. An exploration of how the role is operating two years on also demonstrates that the Department has had the wisdom to allow the role to transform and be enhanced in response to stakeholder feedback.
This has produced a number of changes. Already located in the ‘Wellbeing’ space the role has now been moved into the Health, Safety and Wellbeing Support Unit. This has overcome some of the challenges of the more isolated role – giving the facilitator a familiarity with and access to other services that are available to support parties. These are terrific tools which enhance the opportunities for the workplace facilitator to offer truly situation-specific support and referral which includes:
• A peer support network
Trained volunteers available to support individuals needing help – not trained counsellors but a confidential service based on active listening, clarification and referral to appropriate support services as a ‘first port of call’ resource.
• An employee wellbeing support program
This is often called an EAP (Employee Assistance Program) in other organisations. This is a ‘more than just counselling’ resource provided by an external provider which includes a manager assist offering that provides unlimited bespoke coaching services and a conflict assist coaching service for employees
• Teamwork programs
Early intervention is party driven. Sometimes the coaching element of the role encourages parties to realise that there could be value in bringing the workplace facilitator into the team environment to support the team in dealing well with differences.

The significance of confidentiality
Two years on, other significant feedback is influencing the operation of the role. Parties are reporting that their confidence in the confidentiality of the process influences their willingness to seek support. They want an interaction that is not reportable on content. As a consequence, should it emerge during the facilitation that there is a need to report, the workplace facilitator does not step into the reporting space but offers coaching to the party in how the party might take this action.

Data collection
Every program needs to confirm its value via appropriate data collection. However data collection needs to be managed extremely sensitively. This is particularly important in an environment where the program’s credibility relies on parties’ confidence that there will be no consequences flowing from their decision to engage and that no reporting back to the organisation can ever result in them being identified. Parties will not access a process if there is the slightest concern that confidentiality will be breached, whatever the intention.
The response has been to refine the reporting outcome so that data is captured according to common themes rather than individual cases. This still allows the collection of data which can inform the DHHS about key concerns whilst ensuring that confidentiality has priority.

What are the important lessons from this project?
Two messages strike me as significant:
• The location of this program in the Employee Wellbeing space (which itself sits within Occupational Health and Safety), rather than with other formal Human Resources programs, makes it plain that there is a relationship between human wellbeing and an ability to deal well with differences

• This is not a conventional workplace mediation program. We know that by the time parties get to mediation there is often a fully blown conflict which, in the workplace, has serious employment consequences if it does not end well. This program does offer the opportunity for facilitated conversations. However, the initial emphasis is on a skills transfer via coaching to give participants the confidence to engage in difficult conversations before fully blown conflict breaks out.

Watch this space!