Greg Rooney

(Part II of Greg’s blog following from last week’s Part I)

In response to the challenge of trying to provide value to the new collaborative economy the legal profession has sought to rebrand itself to try to recover commercial relevance. It has looked to the trusted mediation movement as its path to restoring that lost trust. The legal profession has sought to rebadge itself by dumping the designation “litigators” and replacing it with “Dispute Resolvers” (DR) now with lofty ideals:

“Through a fidelity to the good of DR, lawyers not only contribute constructively to society but they can also achieve positive interpersonal and individual change for their clients. This positive impact has the potential to extend to healing, wholeness, harmony and optimal human functioning.” (Boulle and Field) (1)

It is ironic that the long-term criticism of traditional mediation by the legal profession has been that it is too ‘touchy-feely’ and into “healing, wholeness, harmony and optimal human functioning” the very thing that it is now trying to champion DR as.

The proponents of the DR push have gone much further than a simple rebranding exercise. They have chosen to question and diminish the intent and identity of the traditional mediation movement.

Firstly, Boulle and Field (1) suggest that despite mediation’s versatility and diversity of applications it is not clear how mediation will respond to the challenges ahead. Secondly, they suggest it follows that this uncertainty for the future somehow renders mediation vulnerable to being subverted, rejected and replaced or modified beyond recognition.  They then conclude that because of this uncertainty for the future we should not pine for or have nostalgic sentiment for mediation’s (presumably lost or invalid) original intent and identity.

The real intent of the Dispute Resolution movement is revealed by the assertion that:

“It will be necessary to use research to ensure that if evaluative mediation becomes the normative approach, as well it might, that quality-control and ethical frameworks exist to prevent rogue mediators making de facto determinations.”  (Highlights inserted) Boulle and Field (1)

The recent Global Pound conferences were essentially a public relations exercise to pursue this end. It is the promotion of evaluative mediation and allied semi-determinative processes as the pre-eminent conflict resolution process by, in part, commandeering the high value of mediation in the eyes of the community. I am not sure the commercial world is buying this makeover, particularly when it still built on an adversarial solution focused culture that is not in harmony with modern economic drivers.

I would argue that the traditional non-evaluative ‘process’ approach to mediation is far more in tune with the modern collaborative economy. It is an experiential approach which gives the parties the time and space to step back and allow patterns to emerge. The mediator can sense and respond to these patterns.  This creates the potential for new opportunities to emerge out of the interaction that can lead to innovation and creativity. It can help repair disrupted trust which is the central foundation of the modern economy. It is mediating for the emergence of the new rather than providing an evaluation of the parties’ respective positions in order to close the gap.

The core facilitative skills that mediators acquire through the practice of sensing and responding to the immediacy of the moment equip them with the exact soft skills that the commercial world needs to manage in this complex environment. This is reflected in the fact that most MBA courses run throughout Australia have now been redesigned to incorporate soft skills as a core component of their coursework. Further, the big four accounting firms have created legal departments based on a collaborative non-litigious approach to providing legal expertise.

1. Future mediation: A flexible bundle of knowledge, skills, attitudes and ethical attributes  Posted on 24/08/2018 by Dr Rachael Field.  Excerpts from Laurence Boulle and Rachael Field, from Mediation in Australia (LexisNexis, 2018)

(This is Part II of Greg’s three part series.)

Greg Rooney has been a mediator in private practice in Australia for 27 years and has since 1995 taught mediation and allied ADR subjects in a number of universities and private institutions in Australia and internationally. Greg has over the last 14 years mediated over 200 face-to-face meetings between religious leaders and individual victims of sexual abuse within a number of Christian religious institutions in Australia as well as abuse within the Australian Defence Force and the South Australian Police Force. Greg, together with colleagues Margaret Ross and Barbara Wilson, have since 2012 run an annual Mediation Retreat in Tuscany, Italy.  www.gregrooney.com.au

In just a few weeks, the three pillars of Australia’s financial dispute resolution architecture will be rolled into a single new body – the Australian Financial Complaints Authority (AFCA).

From 1 November 2019, AFCA will replace the Financial Ombudsman Service (FOS), the Credit and Investments Ombudsman (CIO) and Superannuation Complaints Tribunal (SCT).

As the AFCA website explains, the body will be funded by its members – i.e. Australian financial providers – with the amount payable by a particular provider being a combination of a base subscription and usage based charges.  This is a mechanism common to industry-funded schemes, and is designed to promote effective internal dispute resolution by providers, and ensures that complainants (consumers and small businesses) can access the scheme free of charge.

The jurisdiction and powers of AFCA are set out in its Scheme Rules.  One notable, and beneficial, feature of AFCA is its power to deal with systemic complaints alongside individual disputes, to order that changes be made, and to report AFCA’s findings to government bodies such as ASIC, the ATO and APRA (the Australian Prudential Regulation Authority).

Dispute resolution practitioners may also be interested to know that AFCA has advertised a number of positions at various levels in both Sydney and Melbourne.  Details here.

Image:  Pixabay, licensed for free commercial reuse.

by Greg Rooney

Mediation has an identity issue – but it’s not its fault.

Mediators – and the profession they practise called mediation – merely sit as innocent bystanders observing how the modern collaborative interconnected economy has challenged the identity and, in some cases, the very existence of the established professions and commercial and social institutions.

We now live in a time where a world of connectivity and fluidity has replaced the 20^th– century Newtonian concepts that are linear, predictable and deterministic.  This is a world driven by the rise of the World Wide Web in 1990, powered by the Google search engine in 1996 and the power of social networking starting with Facebook in 2004.

The world dramatically changed again in 2007 when Napster introduced the first sharing platform heralding the beginning of the collaborative sharing economy.  Then came Airbnb and Uber, both in 2008.  We now have transparent and open data networks that are available free of charge to anyone with an Internet connection.

The latest iteration in this change is the development of the ‘Internet of Things’ which is a network of physical devices, including vehicles, home appliances and other items embedded with electronics, software, sensors, actuators and connectivity, which enables these things to connect with each other and exchange data. As an example Uber’s computers share traffic data with Google Maps computers.

The complexity caused by this connectivity has upended the Newtonian concept that the world is ordered and measurable and that having knowledge of the past will allow a computation of the future.  Many organisations and professions, including the legal profession, still rely on a fixed Newtonian view of the world and wonder why they are being disrupted to their detriment.

The biggest upheaval has been the rise in the commercial value of trust over that of competitive and adversarial behaviours.  The sharing economy relies on the willingness of users to be trustworthy and to trust each other.  The platforms themselves also must be trustworthy. The sharing economy is built on the human element which is inherently complex. It is therefore essential that any conflict be dealt with in a way that preserves those trusting relationships while allowing new learnings which are an essential springboard for innovation and evolutionary breakthroughs.

We therefore require a new way of thinking and operating that can work with this complexity.

This new world order accurately describes the lot of the practising mediator. Mediators around the world will go off to work tomorrow morning and engage with parties at a very human level in much the same way as they have been doing since the late 1980s.  They will work with the uncertainties of the conflict they are mediating and hopefully come up with ‘good enough’ resolutions.  They will continue to deal with complexity and ambiguity daily and use their soft skills to massage impasses and blockages. These ‘soft’ skills are now in high demand in the commercial world.

It is the established professions and the commercial and social institutions that are having the identity crisis. They are in a scramble to find meaning and understanding to try to fit in with this new reality.

No profession is more under threat from this new world order than the legal profession.

Since the 1980s it has moved from being a trusted profession based on the application of scale costs, which moderated the profession’s financial self-interest, to a commercial business model built on time costing to maximise dollar return through promoting (litigation finance) and extending disputes by means of the adversarial culture. The problem is not so much the high legal fees, although it is an issue, it is the pursuit of the adversarial approach to drive those extra fees. This keeps their clients stuck in the conflict zone far longer than is commercially necessary. This has turned out to be a huge self-inflicted wound.

It has left the profession exposed and unprepared for the arrival of the open sharing economy built on trust and maintained by the soft skills of managers and their advisors.

This is Part I of a three part series by Greg

We are said to live in the ‘age of information’, with a vast volume of possibly relevant information available to us for every single decision – from the purchase of an everyday item to the resolution of a complex family dispute.    This has led one commentator to remark  that this large amount of information makes us “like a thirsty person who has been condemned to use a thimble to drink from a fire hydrant.”[1]

Training and experience helps to enable lawyers to  identify information that is current, relevant to the jurisdiction, and authoritative.  However, how do unrepresented parties make sense of legal information?

This was the key research question in a project undertaken by myself and an interdisciplinary group of colleagues.   Funded by the Australasian Institute of Judicial Administration,  we examined how unrepresented parties involved in disputes engage with the information that they need to make sense of their legal rights and responsibilities.

The results of that research have been published in a series of forthcoming articles, including most recently in volume 27(4) of the Journal of Judicial Administration:

Jonathan Crowe, Rachael Field, Lisa Toohey, Helen Partridge and Lynn McAllister, “Understanding the Legal Information Experience of Non-lawyers: Lessons from the Family Law Context” 27(4) Journal of Judicial Administration 137.

What is “legal information experience”  and why does it matter?

Research into legal needs is not a new phenomenon – and it typically focusses on the prevalence of particular types of legal problems, the interaction between different types of legal problems, and the consequences of legal problems for the wellbeing (physical, mental and financial) of individuals.  An excellent example of  this type of research is the large-scale legal needs survey work of the Law and Justice Foundation  of NSW.

“Legal information experience” can be categorised as a subset of legal needs research, but it differs from much existing work on legal needs in its focus and methodology. While some legal needs studies may also consider the role of information, such as the sources that individuals have consulted in order to address their needs, this is usually from a perspective of satisfaction with the available options.

Research into the legal information experience, by contrast, focuses on the lived experiences of people accessing legal information, including how they locate sources of information, engage with those sources and use them to understand their situations.   It uses  a qualitative, interpretive research method based on in-depth interviews with a smaller sample of participants.  This approach is used to gain a detailed understanding of a participant’s unique perspective and to reveal the meaning of the experience from their point of view.[2] It therefore represents a useful complement to larger legal needs surveys in unravelling the complexities of how to best facilitate access to justice.  

Our study of legal information experience identified five key issues:

1. Complexity: Parties struggle with the complexity of the information experience;
2. Credibility: Parties have difficulty in assessing the credibility and reliability of sources of information and the information provided;
3. Preferences: Parties indicate clear source preferences, which are not the same preferences that lawyers might expect;
4. Application: Parties have difficulty applying the information retrieved from various sources to their individual situation; and
5. Language: Parties tend to use language that is no longer reflected in family law legislation or practice.

Each of these aspects of  legal information experience has implications for how legal information can be provided, communicated and interacted with by both experts and non-experts alike.  It also offers insights into how to optimise interactions between experts and non-experts.

In subsequent blog posts we will expand on these findings  and the implications for dispute resolution practitioners, lawyers, and others involved in the communication of legal information.

Footnotes

[1]RS Wurman, Information Anxiety 2 (Que, 2001) 15

[2]S Kvale and S Brinkmann, InterViews: Learning the Craft of Qualitative Research Interviewing (SAGE, 2^nd ed, 2009).

Image Credit: wuestenigel (https://www.flickr.com/photos/30478819@N08/30155035707/) Flickr via Compfight (http://compfight.com) cc (https://creativecommons.org/licenses/by/2.0/) 

A positive professional ideology for legal DR practice should incorporate a genuine fidelity to the good of DR. This ‘good’ derives from the values and goals of DR that are firmly situated within the framework of the rule of law in Australia’s Western liberal democracy. Core DR values include justice, party autonomy and community. Lawyers practising DR need to be professionally committed to working to realise these values across the matrix of DR processes, as they constitute an anchor of belief and perspective, and represent the grounding positive contribution that lawyers as DR practitioners make to society. DR values should influence professional lawyering and decision-making, guiding judgments as to what is acceptable and ethical. DR process goals — procedural and substantive justice, impartiality, self-determination and participation, and access to justice — represent the procedural objectives for putting such values into practice. Together DR values and goals provide the foundations of DR as a societal ‘good’, and form an ethical, just foundation for a positive professional ideology for lawyers.

Parties who seek the services of DR legal practitioners are almost always in a position where they are struggling to manage or resolve their disputes themselves. This is why they need access to legal DR expertise. They find themselves without the necessary knowledge, skills and attitudes to achieve effective dispute resolution, or conflict management, on their own. Being in dispute or conflict is often a difficult, stressful and disheartening time for people. Through a fidelity to the good of DR, lawyers not only contribute constructively to society but they can also achieve positive interpersonal and individual change for their clients. This positive impact has the potential to extend to healing, wholeness, harmony and optimal human functioning.

It is difficult to measure or quantify the exact actual benefit of DR practice for societal harmony, for legal certainty, for the quality of business and personal relationships, and for the well-being of citizens. It is nonetheless our contention that lawyers practising DR are, by putting the values and goals of DR into action, contributing to and sustaining, an inherent public good.

These thoughts have been adapted from Chapter 13 of Laurence Boulle and Rachael Field, Australian Dispute Resolution: Law and Practice (Lexis Nexis, 2017). We welcome your responses to them.

Laurence Boulle and Rachael Field

Acknowledgement of image: https://www.google.com.au/search?q=images+for+fidelity&rlz=1C1CHZL_enAU769AU769&tbm=isch&tbo=u&source=univ&sa=X&ved=2ahUKEwjF3sen79rdAhXY7WEKHdGNB5gQ7Al6BAgAEA0&biw=853&bih=386#imgdii=MAkGkWr9xEeZIM:&imgrc=EEsqx8d9gM18PM:

IN 2019 ADRJ WILL CELEBRATE 30 YEARS OF PUBLISHING ADR ARTICLES

The Australasian Dispute Resolution Journal, published by Thomson Reuters (then Law Book Co), was a pioneer in venturing into the field of publishing academic articles relating to mediation. This came about through the efforts of the late Micheline Dewdney and Ruth Charlton, supported by ADRA and encouraged by the late Sir Laurence Street.

Sir Laurence contributed the first article for publication in February 1990 and remained till his death the Chief Editorial Consultant of the Journal. That article, still fresh and relevant today, is to be republished in Part 2 of Volume 28 as a tribute to his vast contribution to ADR.

Innovation and research continues to expand our knowledge in the broad field of dispute resolution. Thus the Journal would welcome the receipt of unpublished topical articles (up to 5000 words) and book reviews (up to 1000 words). All articles are peer reviewed.

Contributions should be emailed to the Thomson Reuters Editor at lta.adrj@thomsonreuters.com

Posted on behalf of Ruth Charlton

ADRJ Editor

While mediation has become a generic and ubiquitous brand it is worth recalling its 1980s Australian genesis in community justice programs throughout the country. Despite the contemporary preponderance of mediation within courts, tribunals, commissions and other legal institutions or legal contexts, the community justice programs have continued in less prominent forms and have increased their scope and services over time. While it is tempting to consider multiple future adaptions of mediation through replacement and disruptive technology and in many different dispute areas, it is appropriate to recognise the anchoring effect of its earliest community manifestations. While disruption (or, more positively, transformation) is a vogue concept of the age there is also a value in those who maintain the practice of traditional forms of mediation. While welcoming the inn

This is not, however, to pine wistfully for a return to mediation’s original intent and identity, as is sometimes heard at conferences. The system now has multiple intents and numerous identities; its future must be considered in the light of the present, and we reject an over-nostalgic view of mediation’s past. As we said in Australian Dispute Resolution, it is important to engage with ‘the discontinuities in the history of DR in Australia to help us learn from the past, avoid reinventing the wheel, remind us of the ideas and approaches that have been jettisoned, and appreciate why they have been discontinued or replaced’.

We hope you have enjoyed the series of posts from Chapter 12 of our new book Mediation in Australia (LexisNexis, 2018).

Laurence Boulle and Rachael Field

At a recent VADR presentation on Workplace Dispute Resolution, Fred Wright, Rodney McBride and Sue Ackerly spoke about their dispute resolution (DR) work with the public sector. Focussing on triage rather than direct DR processes, their work is data driven – this struck an immediate chord with me as it connects to my passion for evidence-based practice.

The findings of the 2010 State Services Authority’s implementation guide: Developing Conflict Resilient Workplaces and its companion guide for Managers and Teams were drivers of their work. These reports (part of the ‘Taking the heat out of workplace issues’ project) have inspired me to investigate the findings more closely.

This research holds interest for me, because it has a direct and strong connection to my work in DR. But the research has relevance and significance far beyond those of us practising in the DR field. It has something to say to every business – from the largest to the smallest. How many of these businesses (time poor like we all are) will make time to review the findings and explore their business relevance? I think we know the answer.

This is an important example of a broader issue and a recurring challenge.

Is it enough for us – dispute resolution (DR) academics, pracademics and practitioners – to investigate the research and share it with each other or should we be doing more? Do we have a responsibility to pass on this knowledge to the business community intimately affected by the findings? It is a question I see raised continually in research.

In particular, do we need to find a more accessible way to support businesses to recognise the need to deal with conflict early? Does that mean reconstructing how we approach education about DR processes?

The Report published Victorian State Services Authority

Today, eight years after the reports were first published, I wish to discuss three points.

1. What evidence do we have about implementation of the recommendations provided in the 2010 guides?

In the workplace environment, I have seen a move away from more adversarial, ‘grievance based’ processes (often triggered only when they have escalated to a point of ‘no return’), to promoting more informal processes (like conflict coaching, facilitation and mediation) to deal with workplace issues as an early intervention tool. This supports the triage process recommended in the Report.

This suggests to me that we are on the way.

2. How do we support those who are implementing these ideas to pass the message on to others?

Those organisations who understand the value of early intervention and support it together with more formal processes are a vital resource in education about the benefits of ADR. The DR community needs to provide them with evidence-based support and encouragement that they are ‘on the right track’. We can do this by continuing to collect data on the success of this existing research and publishing the findings. We can also showcase these businesses in case studies and success stories.

3. How do we promote these ideas to workplaces who are not yet on board?

The current business environment gives weight to and is influenced by evidence-based practice. Our community continually publish literature and presents at conferences about the benefits of ADR for other DR professionals. The blogposts available via the ADR Research Network are a significant example of how we provide accessible information about the benefits of the different available DR processes.

The question now is how to provide these to the wider community? The practitioners amongst us are sharing this information as part of the ADR processes and professional development we provide.

Many of us have access to other industries- either because of the focus of our research or because of the careers we held prior to entering the ADR space. Although some of you are already doing this, I encourage the rest of you not only ‘preach to the converted’, but to seek a wider audience with which to share your expertise.

For my own part, I plan to find an industry conference where the audience can be introduced to the value of early intervention through the evidence-based research in which my colleagues and I have been engaged.

I invite others to share their ideas about making ADR research accessible to the wider workforce.

Our series of posts from Chapter 12 of Laurence Boulle and Rachael Field, Mediation in Australia (LexisNexis, 2018) is almost at an end. This is our penultimate post:

The institutionalisation of mediation (discussed in Chapter 8 of Mediation in Australia is so central to the future of legal practice that (as we argued at some length in our other work Australian Dispute Resolution: Law and Practice (LexisNexis, 2017)) ‘it should also be central to every law graduate’s experience of legal education’. The recent nod to this position is the inclusion of DR in the core compulsory subject ‘Civil Procedure’ in the Priestley 11 subjects (the core compulsory subjects required for eligibility for admission to legal practice in Australia). Some in the mediation community, including some of our most esteemed colleagues in the ADR Research Network, see this as a positive and sufficient development. We agree that it is a positive development. However, we respectfully consider the approach to be insufficient.

In 2012 a national study by NADRAC found that only eight law schools at that time included in their curriculum a mandatory subject in which 50 per cent or more of the teaching focused on DR. The NADRAC Report made the point that ‘the amount of ADR teaching that currently occurs in the majority of Australian law schools is not sufficient in light of the increasing role that lawyers will play in advising clients about and assisting them in ADR processes’. At the time of writing, NADRAC’s successor — the Australian Dispute Resolution Advisory Council — is conducting a follow-up project led by Dr Kathy Douglas of RMIT. This new project will provide current, accurate and up-to-date nation-wide data about the presence of DR subjects in Australian law schools.

In our view, until that data reflects that every law school graduate has experienced a dedicated DR subject in their degree (including content on mediation theory and practice), the current Australian legal education system will be failing to adequately prepare law students to enter legal practice with the necessary knowledge, skills, attitudes and ethical attributes to enable them to succeed and thrive within and outside the profession in the 21st century. As long as DR is taught to future lawyers predominantly through elective subjects, it will be only those law graduates who have the acumen to choose DR as an elective who graduate with foundational levels of DR competence. The legal academy must support the work-readiness and future employability of students through DR education, if the legal profession is to have the capacity to manage positively the diverse challenges it faces into the future.

We welcome your comments and responses to these thoughts.

Laurence Boulle and Rachael Field

The new conceptualisation of mediation discussed in the previous post, inclusive of diverse practice, responsive, relational and ethically focused on the achievement of party self-determination in specific party contexts, will require ongoing evaluation and measurement of the extent to which the system does or does not live up to this recalibrated identity. Evaluation and measurement, both in absolute terms, and in comparison with other practices, will be critical for mediation’s future legitimacy and credibility, as it has been to the establishment of mediation’s current standing and acceptability in legal and social contexts.

However, the methods and approaches to how we evaluate mediation into the future will need to move past approaches with historical emphases on documenting settlement rates and satisfying statistical masters on time and resource factors. The profundity of methods for assessing mediation to date have been hampered by confidentiality, and by the confirmation bias associated with the need to establish mediation’s effectiveness and efficiency. Continued research is important into the future but will need to be more rigorous and sophisticated — to gauge the value of mediation in general as well as the efficacy of specific skills and interventions from the KSAE (the knowledge, skills, attitudes and ethics discussed previously).

More nuanced qualitative and interdisciplinary methodologies that explain the phenomenon of mediation more effectively will be necessary, such as narrative and phenomenographical methods, including approaches such as observation-based case studies, clinical reflective mediator practice, and individual anecdotes of existential experiences revealed through interviews and focus groups. Research design will include more variables and evaluation systems being built into the foundations of mediation programs to ensure more systematic collection of hard data and soft perceptions. Researchers and policy-makers will interrogate the problem of ‘what do we need to know about mediation’ more closely in order to design appropriate methods to extract the most useful and valid data. Researchers will also need to overcome confidentiality issues, look more critically at the quality of parties’ experiences, expose the shortcomings of mediation, evidence its diverse benefits and question the sustainability and justice of outcomes. Increased rigour in the measurement and evaluation of mediation and its bundle of attributes will better assist theory to meet practice and better inform policy development and the further institutionalisation of mediation.

In particular, we suggest that a closer evaluative eye is required on the operation of evaluative mediation, and the ability of evaluative mediators to achieve party self-determination ethically. It will be necessary to use research to ensure that if evaluative mediation becomes the normative approach, as well it might, that quality control and ethical frameworks exist to prevent rogue mediators making de facto determinations.

‘Forever learning’ is the potential mission statement of the mediation community into the future, as there is still much to be measured in, and understood about, mediation practice. Limitations in the ‘search for mediation knowledge’ will need to be overcome, and a deeper understanding of mediation practice will need to be revealed through a greater array of approaches and sources. Research efforts of greater depth and rigour will inform the future development of mediation’s bundle of attributes and micro-skills, as well as contribute to stronger awareness of the various pressures influencing and impacting the system. Understanding mediation is a long-term project for the mediation movement. Ultimately this understanding will contribute to mediation connecting more closely with the legal, social, economic and political contexts referred to in our previous posts.

We welcome your comments and responses to these thoughts.

Laurence Boulle and Rachael Field

Acknowledgement of images: https://www.google.com.au/search?q=images+for+evaluation&rlz=1C1CHZL_enAU769AU769&tbm=isch&tbo=u&source=univ&sa=X&ved=2ahUKEwiSpP3ekpvdAhWJdt4KHR_fDGwQsAR6BAgGEAE&biw=853&bih=357; https://www.shutterstock.com/search/evaluation?kw=&gclid=CjwKCAjw8ajcBRBSEiwAsSky_aHUdL8UeqEvanh81SIPbwLQOdKVIRBA7b_9no0Drcgc8SAZuTTy2BoCOfoQAvD_BwE&gclsrc=aw.ds&dclid=CJCt2r-Wm90CFZYxKgodIl4Enw