Are we nearly there yet? Reflections on the HDR journey

Posted on 14/06/2018 by Dr John Woodward

As we move towards the middle of this my fourth year of PhD candidature, my thesis submission date is drawing rapidly nigh and the anxiety level is elevated a notch, I thought it might be useful to reflect on the journey thus far and to share with you some of the highlights and low points of the journey although, thankfully, of the latter there is little to report.

Image: ‘Child Drawing’ by The Naked Ape, Creative Commons, CC BY-NC-ND 2.0

I think it is fair to say that the journey may never have commenced at all, had it not been for the blindingly obvious conclusion after thirty years of legal practice as a commercial litigator, that the solutions being offered to litigants by the traditional justice system were somewhat less than ideal. Clients were complaining that the court could not offer the relief they were seeking, the costs of “winning” were prohibitively high and most of the cases in which I was instructed were resolved on some basis well before they reached a hearing. Try as I might, I could never quite be convinced of the claim that the public interest in having the courts “…explicate and give force to the values embodied in authoritative texts…” (1) or otherwise declare the law for the benefit of the public good, had any real relevance to some of the mundane and routine cases in which I was involved. In fact, of all of the hundreds of cases in which I acted throughout my career as a lawyer, only two found their way into the law reports.

And so it was that, armed with the vision of a broader view of justice and a transcript of my Masters in Dispute Resolution, I arrived at the academy with a request to be admitted to the RHD program. It is worth noting at this juncture that the welcoming and supportive culture of the academic community generally and my academic supervisors especially, has been nothing short of outstanding and I believe it is a tribute to their encouragement and support that I have persevered this far.

I am happy to say that my first year of candidature was both vigorous and productive. Together with my colleague Armin Alimardani I represented the Faculty of Law at UNSW in the Three Minute Thesis competition where we both performed without distinction but were grateful for the experience. The formulation of an appropriate research question, the preparation of a proposal and writing of a literature review occupied most of the year and did much to clear my thoughts about the path that lay ahead. I was delighted to discover that others had trodden the path I sought to travel and there was a rich and abundant supply of research evidence in the general dispute resolution field. The filtering of this material was as fascinating as it was challenging and the effort was well rewarded because it placed me in an excellent position to approach the confirmation examination with confidence and to receive and consider the reviewers’ comments constructively. Other features of the year included attendance at a compulsory course on research methodology and the acceptance for publication of the first of three articles which have appeared in the Australasian Alternative Dispute Resolution Journal.

The clear highlight of 2015 was the opportunity of presenting a paper at the 4th ADRN Roundtable at UNSW in September, an event which I shall long remember because it was there that I was introduced to the members of this research network, a group of like-minded thinkers, researchers and teachers who share my passion for a broader framework of justice. I have attended each of our roundtables since and hope to do so again this year. It is, I think, an important and integral part of the aspiring academic’s learning experience to have the opportunity to present his or her research at as many roundtables and conferences as possible. It provides an opportunity for practice at presenting, an opportunity to review the work of others and to receive comments and review of one’s own work in a supportive and non-threatening environment. It also encourages collaboration and the formulation of collaborative networks such as the ADRRN. For the RHD candidate, it also provides a much needed point of human contact with other researchers. The road to a PhD can be a lonely journey at times and it is a good thing to meet with others professionally and socially to exchange thoughts and ideas about what is happening in the research discipline. For me, the ADRRN roundtable is an end-of-year reward for diligence throughout the past year.

The research question with which I am concerned is how lawyers are engaging with court-connected mediation. In her optimistically titled work, The New Lawyer: How settlement is transforming the practice of law (2) Julie Macfarlane explores the reasons why lawyers have traditionally acted in an adversarial manner in response to conflict and dispute. She says that it is a cultural issue and that we (lawyers) behave as we do because of our “legal professional culture.” She posits the existence of three core elements of legal professional culture which guide our thinking and steer us towards adversarial competition whenever a dispute arises. Those elements are, firstly, the default to a rights based system of justice, secondly a belief in justice as process and thirdly a belief in the superiority of the lawyer as expert. Using a data collection instrument designed to capture the presence of those elements in research respondents and with ethics approval sought and obtained, I set off in the Spring of 2016 to drive to various country centres throughout New South Wales to speak to lawyers about their views on court-connected mediation. I spoke with each respondent for an hour, recorded the interviews with their permission on my smartphone and transcribed the interviews later. (For anyone who may be contemplating this as a strategy for the future, be warned: the transcription time to interview time is 6:1 so for every hour of interview you can expect to spend six hours transcribing).

The verdict is in. The qualitative data has been analysed and the interviews studied. In many respects the results are not surprising. They align with other research done in other places and at other times. The good news is that, even over the past five years or so, we lawyers have made some progress in embracing court-connected mediation although at times with a begrudging acceptance and a resignation that it is here to stay and we may as well get used to it. Particular themes emerged and are dealt with in my thesis. They include, notably, the much vexed issue of disputant participation and the issue of confidentiality. Understanding of how lawyers grapple with these issues is of particular interest to me because they go a long way to explaining what Olivia Rundle calls “the dilemma of court-connected mediation.” Other themes which emerged from the data were the inclusion in mediation narrative of non-legal material and the question of whether, in court-connected mediation, mediators should be facilitative or directive. A better understanding of these issues will give lawyers and their clients a better understanding of mediation and a more satisfying mediation experience.

So, as I turn into the straight for the final run home to what I hope will be a successful conclusion, I am sometimes reminded of family holidays and long car journeys and colouring books when my children would ask: “Are we nearly there yet?” and their mother would patiently reply: “Nearly there. Just a little while to go. Just keep drawing in your book. I’m sure you can make it a little better.”

(1) O. Fiss Against Settlement 93 Yale LJ 1073 1983-1984 at p 1085

(2) J. Macfarlane The New Lawyer: How settlement is transforming the practice of law (Vancouver UBC Press 2008)

Mediation in NSW schools

Posted on 06/06/2018 by Frances Richards LLM BComm NMAS

by Frances Richards.

Frances is a volunteer adjudicator for the Law Society of New South Wales mock mediation competition. Frances is an accredited mediator and an Adjunct Lecturer at the School of Law, Sydney, The University of Notre Dame Australia.

2017 Mock mediation Grand Final – this was the winning team Trinity Catholic College Lismore, with presiding adjudicators on either end of the team in the black jacket (Lara Bishkov), white jacket (Monika Lama) and pink jacket (Helen Miedzinski). Photo courtesy Frances Richards

This article is about initiatives to introduce mediation to students in NSW schools.

The NSW Department of Education offers peer mediation programs for primary and secondary public schools in NSW. These programs are one of the conflict resolution strategies available for schools to adopt. The Department provides resources for schools to use and intends to update these resources. The resources can be found at: Peer Mediation.

The Law Society of NSW organizes an annual mock mediation competition for secondary public and private school students. The competition provides an opportunity for students to develop, refine and practice cooperative problem solving and conflict resolution skills.

What are the objectives of these initiatives to introduce mediation in NSW schools?

According to the Department’s resources, the peer mediation programs are intended to ‘empower, prepare and support students and staff to deal successfully with conflict situations at school, at home and in later life.’

According to the Mock Mediation Manual 2018, the competition aims to:

“ Recognise the opportunities for change and progress that can result from conflict and improve the ability of students to manage conflict in a way that leads to a positive outcome

Acknowledge the increasing use of mediation by courts and the community, and equip students with the skills necessary to participate in a mediation process.

Educate students about the importance of the process in tandem with constructive dialogue.”

How does mediation in schools work?

The peer mediation program involves one or two trained student mediators assisting two disputants through a structured process to reach resolution of a dispute. Peer mediation programs are coordinated by staff trained in mediation, who provide ongoing supervision and support to student mediators. Peer mediation programs are intended for minor disputes such as gossip and rumour spreading, name calling, friendship problems, teasing, loss of property and exclusion.

The mock mediation competition is open to students in years 9 and 10. Each school participating in the competition has 1 team with a maximum of 9 students. Each team participates in 3 rounds. All teams in the competition receive a certificate of participation. The two teams who reach the grand final receive a certificate and a medal. The winning team receives a trophy. The competition requires involvement and support from teachers as coaches and mediators as adjudicators.

To receive points for the competition, the students must demonstrate skills including:

Listening, Brainstorming, Empathy, Judgment, Questioning, Decision making, Communication, Teamwork, Problem solving, Leadership, Negotiation, Time management, Assertiveness and Reflecting.

What are the benefits for students?

Both the peer mediation program and the mock mediation competition are intended to benefit the students, staff, schools and community.

The intended benefits for students are:

Skill development including communication, listening and problem-solving skills
Assuming greater responsibility for solving their own problems
Creating an awareness of their responsibilities when dealing with others
Furthering personal development and self-improvement
Increasing self-esteem
Learning to manage conflict in a productive way

In addition to the mediation competition context, acquiring these skills may be of importance for the future employability of the students. A recent study of the Canadian workforce by the Royal Bank of Canada shows that these are the types of skills students will require to negotiate the future. The study found that “An assessment of 20,000 skills rankings across 300 occupations and 2.4 million expected job openings shows an increasing demand for foundational skills such as critical thinking, co-ordination, social perceptiveness, active listening and complex problem solving.”

The study also found that “Virtually all job openings will place significant importance on judgement and decision making and more than two thirds will value an ability to manage people and resources.”

The findings of the study are contained in the report “Humans Wanted How Canadian youth can thrive in the age of disruption” published on 26 March 2018.

What are the other benefits?

The intended benefits for schools and the wider community include:

reduced conflict in the school environment
reduced bullying and aggressive behaviour
reduced tension in the classroom environment
reduced time spent by staff on minor disputes
safer and more harmonious school environment
maximising the opportunity for learning for all students
promoting open communication to resolve contentious issues
maximising the benefits of cooperative problem-solving
encouraging mediation and negotiation as an alternative to litigation

What does the research show?

An exploratory study into a peer mediation program in a primary school context in NSW collected data that demonstrated therapeutic benefits for the school community, that students reported that participation in the peer mediation program had benefited them in their lives after school and that the training and knowledge obtained from the program can be applied in different situations (McWilliam, N., A school peer mediation program as a context for exploring therapeutic jurisprudence (TJ): Can a peer mediation program inform the law?, International Journal of Law and Psychiatry (2010), doi:10.1016/j.ijlp.2010.09.002.)

Research has also been conducted into the use of mediation as an educational strategy in schools in other countries. One recent study of mediation in Spanish schools found evidence that the programs did teach students skills that they do not have the opportunity to learn in other subjects and to manage their own conflicts (Raga, L. G., Sanchis, I. C., Mora, A. M., & Santana, G. R., (2016). Strengths and weaknesses of the school mediation from the perspective of students in secondary education. Pedagogía Social: Revista Interuniversitaria, (28), 203-215. 10.7179/PSRI_2016.28.15.)

Conclusion

As an adjudicator for the mock mediation competition I have observed the students participating enthusiastically and reflecting on their experience of how hard it is to actively listen, what it feels like not to be heard and how hard it is to find strategies to unlock deadlock.

The potential of the peer mediation program and the mock mediation competition to deliver their intended benefits is limited by the time, resources and commitment of staff and volunteers.

Research is needed to provide evidence of the benefits of students participating in peer mediation programs and mock mediation competitions. Such evidence would assist schools in deciding to allocate time and resources to expanding the use of mediation initiatives. Submissions to conduct research in NSW public schools can be directed to: <http://www.serap.det.nsw.edu.au/>. Information about participating in the mock mediation competition in 2019 can be found at: Law Society Mock Mediation

Restorative Justice in Mediation: A study of Police Complaint Systems: by Mary Riley PhD Candidate USC

Posted on 31/05/2018 by Dr Susan (Sue) Douglas

Alternative dispute resolution (ADR) is the way of the future given the cost, delays and personal toll that litigation through the courts can take on individuals. Civil law disputants have and continue to benefit from ADR by resolving their conflict via facilitated dialogue. Conversely, when disputants take the litigation road their often subjective issues are objectively dealt with and the outcome does little to repair or enhance the parties’ relationship. Why is this important? Well, humans are social creatures. We survive and thrive because of our relationships with others. If a civil dispute involves individuals who know each other, either personally or through business dealings, then establishing understanding and peacemaking is vital to their future interactions. So, the question is: can ADR take the resolution of disputes a step further – to heal the parties involved? Restorative justice (RJ) offers a way to do that.

The RJ principles of encounter, respect, open dialogue and agreement, through independent facilitation, have been applied in criminal justice mediation and conferencing for some time. RJ addresses the needs of those involved, in a way that is meaningful to them. It gives individuals a ‘voice’, so the harms caused by wrongdoing, which can be debilitating and life altering, can be expressed. The transformation that can occur in RJ mediation often results in changed attitudes and material and symbolic reparation.

I am about to embark on a study of the mechanisms for dealing with civilian complaints against police in Australia and elsewhere. I want to find out whether there is a place for RJ in the resolution of this type of conflict which is civil in nature but sits in a criminal justice context. Given that the police interact with the community in the course of their law enforcement duties it is not surprising that disputes occur and that these can result in large numbers of complaints. But the way these complaints are handled (i.e. against police but managed by police) may not lead to the restoration of what is a very important relationship – the police and in the community. An initial scoping exercise has revealed that in most parts of the world, complaints against police are dealt with via an internal process. However, there are a growing number of international examples of RJ mediation being used to resolve these disputes. The expected outcome of my research is a best practice model for the resolution of civilian complaints against the police, which could be implemented in Australia and elsewhere, including guidelines for successful implementation.

From theory to collaborative practice

Posted on 12/05/2018 by Sue Armstrong PhD

hands

I was a legal academic for twenty years: teaching, researching and writing about family law and family mediation. I have always sought to integrate theory with practice, and to inform my teaching and research with professional experience and current innovation. So, in addition to being a lawyer, I have trained and practised as a mediator, a family dispute resolution practitioner, a conflict coach and an interdisciplinary collaborative practice coach.

Interdisciplinary collaborative practice training

I thought I understood the collaborative framework and philosophy, but interdisciplinary collaborative practice training helped me better appreciate the rationale, the nuances of the process, the significance of teamwork and presence, and the value-add and roles of legal and non-legal professionals in this approach to dispute resolution. It sparked a strong interest to enrich my professional practice to include this burgeoning and important speciality. It made me keen to develop the artistry required of an effective collaborative practitioner.

At the core of collaborative practice is commitment to enhance party self-determination through structured and staged multi-professional support and advice. To this foundational mediation premise, collaborative practice applies current brain science to understand how separation and divorce are experienced as trauma. This science affirms that in empathising with people who are in acute stress response, professionals walk alongside them, reduce the energy taken up by their limbic system, support them to mirror empathic behaviour and create space for the neocortex to work more effectively.

This is critical because it assists people to manage their anxiety, creates calm, enhances self-awareness and promotes the capacity for active listening. It ultimately supports considered reflection and greater capacity for understanding themself, hearing their ex partner and making informed choices.

Coaching in the five way process

One of the more recent collaborative developments is the five-way collaborative process in which in a coach is an independent and impartial facilitator and steward of the collaborative process. A coach may assess the dispute and parties for suitability, and helps the lawyers and parties to make efficient use of the process.

Coaches often manage the overall process, frame the agenda and minute meetings, as well as assist parties to prepare for the meetings and to communicate effectively. They may meet jointly or separately with each party between five-way meetings to clarify party goals, assist parties to develop strategies to regulate their emotional state, facilitate feedback from child consultants, foster parental alliance, and help the family to transition constructively through the separation.

Coaches may be mental health professionals, but in Australia they are also frequently accredited Family Dispute Resolution Practitioners, bringing mediation expertise and authority to issue family court certificates should agreement not be reached. If appropriately trained, coaches may also bring the power of empathy to assist parties to self-regulate and to suport their capacity for empathic listening.

Coaches don’t need to be mental health professionals to do this, but do need to be aware of their professional boundaries, and to refer parties to seek psychological support or counselling if needed. The value of coaches in collaborative practice is their impartiality and their capacity to support interest-based negotiation, creatively problem solve, manage the meeting and between-meeting processes and keep the collaborative process on track.

Interdisciplinarity

Interdisciplinarity is one of the key features and advantages of contemporary collaborative practice. The support provided to parties by a multi-professional team can be invaluable and ensure informed decisions are made which have a whole-of-life and whole-of-family perspective.

A collaboratively trained financial neutral or forensic accountant can not only provide advice and options to distribute assets to meet immediate needs and just outcomes, but can do this within a longer-term perspective to address complex structuring issues, save tax and super and optimise parties’ future financial viability. Children’s specialists can also assist parents to hear their child’s experience of the separation and clarify what is in the child’s best interests.

Opportunities for lawyers

This interdisciplinarity, and especially the coach role, has the potential to decentre lawyers. But I think it actually frees lawyers to employ their expertise and advocacy to help parties achieve holistic outcomes. Whilst collaborative practice is likely to be attractive to lawyers already committed to non-adversarial and client-centred lawyering, it requires that lawyers are collaboratively trained so that they fully appreciate what teamwork requires, and what commitment to empower people to resolve their disputes jointly and collaboratively means in practice.

Because of its flexibility, collaborative practice also provides lawyers with further opportunities to reframe the process in ways consistent with protecting their client’s legal rights as well as problem solving about their needs and interests. Thus collaborative law has the potential for lawyers to contribute to reshaping the paradigms of legal practice and appropriate dispute resolution.

For many family lawyers this is their preferred form of practice. Family law clients report the benefits of collaborative practice in easing the separation transition and supporting post separation family life. One commented ‘my children are happy that their parents went through a non-adversarial process and they had a chance to voice their opinions to the Child Consultant and Coach’. Another reported ‘my husband and I decided we would try the process to see if we could get through our divorce amicably. Overall this was extremely successful and I would definitely suggest that anyone going through a divorce consider the collaborative route – it is quicker, it is cheaper and it encourages the couple to remain civil despite the tense emotions that inevitably come into play during a divorce.’

Collaborative practice has enormous potential to provide multi-professional support to transition people through separation and help them make informed, child-centred and life affirming choices. Further information is available through state-wide collaborative professional networks and collaborative practice training organisations.

Also published in Collaborative Professionals (NSW) Inc Newsletter, 20 April 2018 and on Armstrongmediation.com.au blog on 11 May 2018.

An ADR Research Network Roundtable Success Story

Posted on 11/05/2018 by Dr Susan (Sue) Douglas

An invitation to submit a paper for the 7th ADRRN Roundtable on the Sunshine Coast in December this year was posted on our blog in April. The function and aims of Roundtable are described in the invitation as:

The Australasian Dispute Resolution Research Network brings together leading dispute resolution scholars and provides a collaborative environment to foster, nurture and enrich high quality research and scholarship. The Network is inclusive and forward-looking and seeks to bring together emerging, mid-career and established scholars to build excellence in the field and provide peer support. Network activities are expressly designed to provide a supportive and collegial presentation environment in which meaningful discussion and constructive feedback are provided to the presenter.

I have been fortunate to attend 5 of the 6 Roundtables to date. There are many positive outcomes of the Roundtables, not least of which is the opportunity to meet and engage with people of like interest who are dedicated to the principles and objectives of ADR. The atmosphere is informal and decidedly collegial. Of critical importance is the opportunity to present a paper for supportive and constructive feedback. Papers are expected to be works in progress and not finished products already accepted for publication. In this respect, the Roundtable presents a golden opportunity to gain input from other scholars in a non-competitive and pointedly helpful environment. Those who give feedback are expected to do so respectfully and constructively. It is a particularly helpful opportunity and environment for HDR students, many of whom have attended Roundtables to date.

I can give you an example. I had put together a paper about the meaning of impartiality in mediation based upon interviews with mediators. I thought it was interesting and useful but it was rejected when submitted to a peer reviewed journal. I thought “don’t they get it?” and then “what do I need to do to improve it?” Apart from rethinking the choice of journal, I became aware that the paper lacked an explicit theoretical framework. I presented the paper at the Roundtable. I was able to ask questions about how it could be improved and in particular what theoretical framework I could use to ground the data I had collected. I was given excellent feedback. A reviewer suggested that to them the central issue and possible framework was justice in mediation – how obvious! Yet I had been too close to the material to see this perspective. In addition, I was able to hear and gather ideas from wider discussions which helped me place my work within other current themes considered by researchers. I reviewed and rewrote my paper. I then presented it at the Non-Adversarial Justice Conference in 2017 and became eligible to submit it to the Journal of Judicial Administration. It was accepted:

Susan Douglas, ‘Constructions of Impartiality in Mediation’ (2017) 26 Journal of Judicial Administration 232.

A researcher’s work life can mean long hours of inward focus – reading, thinking, reading, thinking, talking to one’s self. A HDR student’s lot can feel isolating and daunting. I have always come away from the Roundtables feeling invigorated by the discussions and nurtured by the collegial atmosphere. I encourage you to send in a proposal for a paper. See details below and …. flowers from Dunedin where the 2017 Rountable was hosted by Otago University.

Deadline for paper proposals: 13 July 2018

(300 word maximum plus short bio, to adrresearchnetwork@gmail.com)

Date for notification of acceptance: 31 July 2018

Draft (full) papers + blog post due: 30 October 2018 (to send to participants early Nov.)

For further information, please contact:

Conference Convenors and 2018 Network Presidents:

Sue Douglas and Lola Akin Ojelabi via adrresearchnetwork@gmail.com(monitored twice weekly)

Forty years of anti-discrimination law — how far have we come?

Posted on 27/04/2018 by Dominique Allen

This article was originally published in Impact on 24 April 2018

Photo credit: x1klima, Woman and Grief

Anti-discrimination law was introduced in Victoria in 1978. But after 40 years we don’t seem to be any closer to equality for all. Could establishing a corporate watchdog be the answer?

Photo credit: Classic Film, Creative Commons

Wanted: Female, 22-25, for a secretarial role. Prefer single.

Imagine running a job ad like this today. Yet, before the advent of anti-discrimination laws, employers were able to limit applicants to very specific age groups, sex and marital status.

The introduction of Victoria’s Equal Opportunity Act in 1977 put a line in the sand for sexual discrimination in the workplace. While race discrimination laws already existed at a federal level, the various state governments brought in their own legislation to cover issues such as sex, age and disability discrimination.

In 1979 flight instructor and qualified pilot Deborah Wardley took Ansett Airlines to task under the new legislation after she was prohibited from being employed by them as a pilot due to her childbearing potential.

Writing to the Women’s Electoral Lobby, General Manager, Reg Ansett said: “we have a good record of employing females in a wide range of positions within our organisation but we have adopted a policy of only employing men as pilots. This does not mean that women cannot be good pilots, but we are concerned with the provision of the safest and most efficient air service possible [and so] we feel that an all-male pilot crew is safer than one in which the sexes are mixed.”

Subsequently, the case came before the High Court of Australia and much to the chagrin of Reg Ansett, Wardley won and went on to a successful career as a pilot.

Not far in 40 years

Fast-forward 40 years and have we really made that much progress?

Monash Business School’s Dr Dominique Allen doesn’t think so. And the move to private mediation is the main reason.

Dr Allen explains that in the early days of the legislation a number of prominent cases helped weed out the most blatant forms of discrimination and served to educate the public.

“When Deborah Wardley won the case, it was a significant victory for women fighting discrimination in the workplace,” Dr Allen says.

“But our legislation has really stagnated since then.”

Since the courts moved towards mediation and conciliation, most anti-discrimination cases are settled privately.

“The public thinks that discrimination was addressed in the 1980s and that it doesn’t happen anymore,” Dr Allen says.

And there are many reasons why people settle: the exorbitant costs involved, the risk of more costs if you lose, damage to their reputation and importantly the psychological pressures of being involved in litigation.

Most people don’t want to spend years pursuing a claim, and others who have lost their job simply move on and find another one, rather than front up to court.

While this makes perfect sense, it means that the whole system has become privatised — taking place behind closed doors so people aren’t aware that discrimination still happens and how it is resolved.

What does compliance look like?

While settling cases may seem sensible, from a business or employer perspective, they don’t know what compliance looks like.

There is no deterrent aspect – they can’t see that someone else has made a claim against a certain issue or behaviour and make moves to prevent it from happening in their own organisation.

“There are problems with the system which focuses on the individual rather than the broader society,” Dr Allen says “We cannot rely on an individual to address the discrimination to “name, blame and claim” it as discrimination.”

She advocates a watchdog similar to corporate regulators to shift the focus to the employers and to business because they are best placed to foresee the impact of their actions on equality.

She proposes that such an enforcement body could make claims on behalf of people or represent them, in the way the Fair Work Ombudsman can in the industrial relations sphere; currently, there is not an equivalent body for equal opportunity.

“There’s nobody like the Australian Securities and Investment Commission (ASIC) or the Australian Competition and Consumer Commission (ACCC) that can step in and enforce the law or pursue a case – it relies on an individual who is often a vulnerable person,” she says.

Other options to improve the current system include putting requirements on employers and business to act first, rather than waiting until discrimination occurs. Dr Allen says the UK does something similar; public authorities need to have “due regard to the need to advance equality of opportunity” in their undertakings.

Tickets please

Another early case involved Victorian trams issuing scratch tickets that were difficult for visually impaired people to use, while removing conductors who had traditionally assisted people with different disabilities to use public transport. Nine people with various physical disabilities took the Public Transport Corporation to court on the basis that these actions were a form of indirect discrimination. The judges of the High Court agreed.

Dr Allen says that it was one of the unusual instances where the court ruled that it was not just going to compensate people, it ordered the government to review the ticketing system on trams.

It would be unusual today to see a wide order like this. Now, court-awarded damages are fairly insignificant amounts. Yet Dr Allen says it is one of the things that is needed to tackle discrimination effectively.

She says that while having the conciliation system is good – in that it saves costs and the deal remains confidential – from a societal perspective it doesn’t address broader issues.

Bring in the stick

From a business perspective, low amounts ordered by courts are not a deterrent and don’t encourage compliance with the law. Dr Allen says: “there is no big stick to wave if people are not doing the right thing. There is no fear, as would be the case if the ACCC was pursuing them, that a hefty penalty may be imposed if they’re found to have acted unlawfully.”

So in 40 years have we addressed the discrimination in this state?

“I think we have come a long way. There are barriers that have been broken down and blatant forms of discrimination don’t happen anymore but there’s still much more than the law could do to address those hidden systemic forms of discrimination,” Dr Allen says.

Victoria’s legislation was modernised in 2010 and Dr Allen is currently working on research to see how effective these changes have been which is due later in the year.

This article was first published on Impact. Read the original article

Some questions about empathy and rapport

Posted on 24/04/2018 by AlysounBoyle

This article reports on a side-issue that has arisen within a much larger research project. A separate part of the large research project was presented to the ADRRN at its last Round Table in December 2017.

Empathy and rapport are complex aspects of human interaction, and there is a significant literature on them dating back at least to Alfred Adler in the 1920s. The literature occurs principally in the research fields that include sociology, linguistics, neuroscience, social psychology, and cognitive psychology. In essence, empathy is accepted as being able to identify with another person, to understand what it might be like to be that person, while simultaneously retaining your own sense of self and maintaining your own sense of emotional control. It has been established that empathy and rapport are essential prerequisites for building trust and maintaining effective communication, and that establishing empathy will increase a person’s sense of satisfaction with business services. Empathy has been said to be underpinned by what are called the “rules of communicative competence” by which individuals calculate the appropriate levels for relating to others depending upon cultural and personal influences at any given time. Where one person has high levels of communicative competence, in any given situation, they remain sufficiently aware of the presence of others that their behavioural and linguistic preferences will enable them to assume an appropriate level of relationship with those other people. These rules of communicative competence have since become better known as the “Rules of Rapport”

It is widely accepted that empathy and rapport are different states. Research in other fields has shown that empathy plays an important role in developing rapport, rapport plays an important role in developing trust, and trust plays an important role in creating a cooperative atmosphere in which mutually beneficial outcomes can be crafted. However, understanding and acknowledgement of the differentiations in that sequence is rare in the mediation literature, as are explanations of how the researchers intend any of the terms to be interpreted in the context of their study.

Given what is known about empathy and rapport, it is a pity that the mediation literature includes very little about what mediators actually say and do to establish an empathic relationship with and between the disputants in any particular mediation; nor what the mediators say and do that enables that empathy to contribute to building rapport and trust. For example, researchers often report a general sense of what mediators say (e.g. the mediator described the mediation process), or of what the mediators do (e.g., the mediator created an atmosphere suitable for negotiation), yet they do not report what the subject mediator actually said or did: when the mediator described the mediation process, did they use formal or less formal language, did they speak to the disputants jointly or separately (or both), what was the mediator’s tone of voice and demeanour (It has been reported elsewhere that actual demeanour is important in the development of empathy and rapport)? What did the mediator say and do that created a sense of the atmosphere being suitable for negotiation?

There is a reasonable amount of research outside the field of mediation that has reported on how empathy and rapport are established and the range of effects they can have (e.g., improving witness recollection, and increasing engagement in and commitment to business relationships). It is likely that, because of mediation’s essential links to conflict, empirical studies of mediators and of mediation would be a significant contribution to knowledge about empathy, rapport and trust. Well-designed, rigorous empirical studies could investigate: how can empathy, rapport, and trust be established in situations of conflict; how do the indicators of empathy, rapport, and trust differ in the context of conflict; how do the effects of empathy, rapport, and trust differ in the context of mediation generally (compared with other contexts); how do they differ between mediations conducted in different contexts?

How much does the establishment of empathy, and the building of rapport, influence the often-reported mediator experience of disputants and other participants reporting high levels of satisfaction with the mediation process despite not having achieved any form of settlement?

Finally, during all the emphasis on the mediator’s role in establishing empathy and building rapport, have we forgotten a different perspective: how often do the disputants seek to establish an empathic relationship with the mediator?

Some Readings and Sources

Adler, Understanding Human Nature (Greenburg, New York, USA, 1927).
J. Clark, ‘Empathy and Alfred Adler: An Integral Perspective’ (2016) 72(4) The Journal of Individual Psychology.
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Call for Papers for a Special Edition Australian Journal of Clinical Education

Posted on 16/04/2018 by Associate Professor Bobette Wolski

The Australian Journal of Clinical Education (AJCE) is an open access double blind peer reviewed journal devoted to issues of practice and innovation in clinical education in the disciplines of Law and Health Professional Education.

SPECIAL ISSUE: TEACHING AND LEARNING OF DISPUTE RESOLUTION IN HIGHER EDUCATION

Guest editor: Dr Bobette Wolski

Photo Credit: Russ Seidel, Colour and Shape, Creative Commons

INTRODUCTION

An understanding of dispute resolution theory and the development of dispute resolution skills are now considered to be a crucial part of a balanced education in a wide variety of disciplines and programs. It is generally accepted that learning about dispute resolution is best facilitated using simulations, roleplays and clinical experiences. It is through such learning experiences that our students gain, amongst other things, competency in communication skills, an understanding of human
emotions and needs, and an understanding of and appreciation for the variety of ways in which disputes may be resolved (or at least, managed). However, while much has been written about the teaching of dispute resolution, there are still many questions that remain unanswered, and challenges to be overcome.

CALL FOR PAPERS

The AJCE invites contributions for a special issue of the journal which will focus on the teaching and learning of dispute resolution in higher education. The issue will be edited by Dr Bobette Wolski (Guest Editor) and Dr Francina Cantatore (Editor-in-Chief).

The Editors invite submissions of articles for review and publication in Volume 4, 2018 from academics, researchers, practitioners and students on all matters relating to the learning and teaching of dispute resolution in higher education in law and health care in Australia and globally.
Submissions could address, but would not be limited to, topics such as:
1. Effective ways in which to integrate dispute resolution education in the curriculum or program of learning
2. The impact of emergent technologies on the learning and teaching of dispute resolution
3. Teaching and learning of dispute resolution to make a positive impact on student well-being
4. How to prepare students for the increasing importance of dispute resolution in the global environment
5. Innovations in teaching and learning of dispute resolution
6. Tried and true: teaching methodologies that have been effective in teaching dispute
resolution theory and practice
7. Teaching for interdisciplinary understanding and practice of dispute resolution
8. Dispute resolution and access to justice
9. Can we teach students to act ethically in dispute resolution and if so, how and why?
10. Any other topics relevant to the teaching and learning of dispute resolution.

Please submit an abstract of your paper (abstracts should be no longer than 300 words in length) by 31 May 2018. In the first instance, abstracts should be forwarded to Bobette Wolski by email addressed to: bwolski@bond.edu.au. Please include your position description, organisation and contact details in the abstracts. Authors will then be invited to submit full texts of papers to the journal website.

The submission deadline for full papers is 31 August 2018.

It is anticipated that the special issue, which will be published as Volume 4, 2018, will be published late this year or early next year.
The style guideline is available here.
For more information visit here.

7th ADR Research Network Roundtable 3-4 Dec 2018: Call for Papers

Posted on 11/04/2018 by Dr Susan (Sue) Douglas

7th ADR RESEARCH NETWORK ROUNDTABLE

MONDAY 3^rdand TUESDAY 4th DECEMBER 2018

UNIVERSITY OF THE SUNSHINE COAST, MAROOCHYDORE, QUEENSLAND

Call for Paper Proposals

The Australasian Dispute Resolution Research Network is pleased to be hosting its 7th annual research roundtable on 3-4 December 2018.

The roundtables are designed to encourage a collaborative and supportive research environment in which papers are work-shopped and discussed in detail. Papers in draft form are distributed one month ahead of time to participants, to enable thoughtful and constructive quality feedback.

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 roundtable discussions. A panel will select roundtable 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 roundtable will include a spread of participants across stages of career; and
A well-balanced range of work will be presented at the roundtable to provide diversity, to develop the field and to enable cohesive discussion.

Participation is on a self-funded basis.

In 2018 we will also be asking you to draft a short (1,000 words max) blog post about your paper prior to the roundtable. On the day, speakers are given up to 30 minutes for presentation, with 30 minutes for feedback and discussion. Two primary commentators will be appointed for each paper.

Attendance at the Round Table is only open to individuals who are contributing to the scholarly discussions by presenting a paper, or commentating and/or chairing a session.

Deadline for paper proposals: 13 July 2018

(300 word maximum plus short bio, to adrresearchnetwork@gmail.com)

Date for notification of acceptance: 31 July 2018

Draft (full) papers + blog post due: 30 October 2018 (to send to participants early Nov.)

For further information, please contact:

Conference Convenors and 2018 Network Presidents:

Sue Douglas and Lola Akin Ojelabi via adrresearchnetwork@gmail.com(monitored twice weekly)

About the Australasian Dispute Resolution Research Network

Network activities include maintaining the ADR Research Network blog at www.adrresearch.net on Twitter and conducting annual scholarly round tables of work in progress since 2012.

Guest blog post proposals are always welcome. Contact blog editor Becky Batagol, at Becky.Batagol@monash.edu.

Membership of Australasian Dispute Resolution Research Network

We don’t like hierarchies or unnecessary administration, so we don’t have any membership list or legal organisational framework.

The way to become a member of the ADR Research Network is to subscribe to the blog. This is our primary means of communication.

Subscription will mean that every time a post is made on the blog you will receive a notification alert to your email address. Other ways to follow blog activity is through Facebook “ADR Research Network” and Twitter, but engagement on these platforms is not necessary to keep track of blog activity.

National Mediation Conference Canberra 15 – 17 April 2019

Posted on 04/04/2018 by AlysounBoyle

“Over the Horizon: Expanding the Dispute Resolution Landscape”

Celebrating 25 years of NMC

Mountain tops 2018

The Conference Design Committee is focused on providing a landmark conference that will interest equally the seasoned professionals as well as the new comers, and has already flagged its lean towards innovation by suggesting some new integrated conference streams devoted to: innovation in the sector, indigenous issues, Restorative Justice, and research and education. These will complement the traditional areas and topics. The Committee is keen to see all areas of the sector being welcomed to the conference, including lawyers, conciliators, academics, and facilitators.

Members of the Conference Design Committee come from all around Australia, and include some of Australia’s top DR thinkers; there are people who have worked on previous NMC events, and people who are new to the task. Each brings their own expertise to contribute to the design and population of the conference. In addition to designing the conference program, they are overseeing preparation of the Call for Papers, which is scheduled for distribution in July this year, and have agreed to apply their own rigour to the final selection of presentations. Consideration is also being given to ensuring the conference program and format can meet the needs and expectations of DR academics.

The Committee is intent on designing a conference that:

reinvigorates this important DR event
maintains a balance between practice and theory/research; between interactive and didactic presentation formats; and between formal and informal styles of presentation
takes into account the application of DR skills in areas that are not focused on disputes and conflict

All power to the Conference Design Committee.

NMC Ltd is a company with statutory responsibilities. A Board of Directors has been appointed, on a voluntary basis, to oversee this aspect of the conference, and is undertaking a comprehensive review of the company’s governance, constitution, protocols, and purpose. Although this is very much a “behind the scenes” activity, it is pivotal to NMC Ltd’s ongoing viability. Thank you to the Board of Directors, and, in particular, to Professor Laurence Boulle AM for Chairing the Board.

Conference Logistics is the professional conference organiser for NMC2019, and they are providing valuable administrative and logistical support for both the Conference Design Committee and NMC Ltd’s Board of Directors. Their staff are currently working on a conference design/logo that celebrates the silver anniversary, and on developing a dedicated website that will enable registration for the automatic receipt of email updates in the lead-up to NMC2019.

In summary, the Conference Design Committee is already focusing on attracting, and welcoming, all areas of the sector; ensuring that DR research is an integral part of the package; and taking an innovative approach to the design and content of what is already shaping up to be a great event.

We may have been late out of the blocks, but you can already smell the excitement.