This post has adopted from a presentation given at the Civil Justice Forum 2018 hosted by RMIT by Nussen Ainsworth, Professor John Zeleznikow and Colin Rule.

(Photo: Colin Rule skyping from California USA into the ADR lecture in Melbourne Australia.)

Introduction

In 2017 the Alternative Dispute Resolution unit at the Victoria University Law School partnered with Tyler technologies (formally Modria) to integrate Online Dispute Resolution into the unit as a key form of assessment. The Tyler/Modria platform used in the pilot is the one being used in the USA and other countries for court/government/commercial purposes (https://www.tylertech.com/solutions-products/modria). It has not been designed for student assessment

All students were required to participate in an ODR simulation in groups of 3 and primarily provide legal advice re the content of the simulation together with a written report. This blog post will discuss the process of developing an ODR simulation and integrating it into the law degree curriculum.  We will also consider assessing student performance. This post will also outline some of the opportunities and challenges for teaching ODR that were identified in conducting the pilot and also provides ODR insights from law students taking the course.

ODR Development

Online Dispute Resolution (ODR) is a concept developed circa 1996. At that time the focus was upon the resolution of disputes that originated online.  The prevailing belief was that those whose disputes that originated on the internet would find little difficulty in attempting to resolve these disputes via the World Wide Web. For most of the past twenty years, ODR research has focused upon electronic commerce disputes. Only recently, has ODR focused upon non-financial disputes and disputes that do not originate online.

Access to Justice Review (VIC, 2016) Recommendation 5.2

The Access to Justice report was commissioned by the Victorian Government in October 2015. The aim of the review was to improve access to justice for Victorians. The review was released in October 2016 with 60 recommendations.

Recommendation 5.2 was for the development of an online system for the resolution for small civil claims at VCAT. The Government agreed to implement this recommendation in May 2017.  The review recommends the following three-step process for introducing ODR into the Victorian Civil Justice System.

Step 1. establish an Online Dispute Resolution Advisory Panel with terms of reference to oversee the introduction and evaluation of an online dispute resolution system for small civil claims in Victoria and make recommendations about the possible future expansion of online dispute resolution to other jurisdictions in Victoria;

Step 2. provide pilot funding, and, subject to evaluation, ongoing funding, for the development and the implementation of a new online system for the resolution of small civil claims in Victoria; and

Step 3. introduce legislation to facilitate the use of the new online system for the resolution of small civil claims.

The British Columbia Civil Resolution Tribunal (https://civilresolutionbc.ca/)  acts in a similar manner.

ODR, Artificial Intelligence And Self Represented Litigants

Zeleznikow has examined the issue as to whether potential litigants can receive useful support from intelligent online dispute resolutions[1]. He claimed that such systems can be particularly useful for self-represented litigants. The SRLs benefit not only from obtaining useful advice, but also becoming better educated about the procedures and potential outcomes for issues in dispute. He noted that most ODR systems provide exactly one of either BATNA advice, support for trade-offs and facilitated communication. A truly useful Online Dispute Resolution system should be a hybrid of all three approaches. Further, Online Dispute Resolution should not be fully automated. As well as providing opportunities for communication, such systems should advise users of the relevant law, potential solutions and relevant trade-offs. These tools might be videos, relevant papers and books, past cases and links to useful websites. They can also be very useful in triaging disputes (e.g. immediately sending a case of domestic violence to court rather than allowing the parties to prolong physically acrimonious disputes) and act as a source of information collection (there is no need to expend a court official’s time recording demographic data).

The ADR Unit At VU

The ADR unit at VU College of Law and Justice was first delivered in 2015. The unit is a popular elective with approximately 120-140 students enrolled each year. Through a Technology Enhanced Learning Grant, a series of videos were developed which followed a case through mediation and arbitration. The videos are posted on YouTube (https://youtu.be/J2KLXAKfIL8). The unit received a blended learning grant in 2017. This grant was used to develop the ODR simulation component for the unit.

Unit Assessments

The unit has four assessments. Assessments 2-4 are group based.

1. Online multiple choice questions
2. ODR simulation and report
3. Letter of advice post the ADR process with the production of either a mediation deed of settlement or an arbitration award
4. Group presentation

ODR Added Benefits for Students

ODR has primarily been seen as the provision of ADR via technology. ODR integration into the ADR curriculum has the potential to offer many benefits for students. The ODR component requires students to develop their technological literacy. It also offers greater time and access flexibility for students.

Student Insights from the Integration of ODR in the ADR Unit

The following insights were adapted from observations, class discussion and student submissions in the ADR unit.

The Benefits of ODR

There are a number of benefits offered by the use of ODR where the parties use a text-based platform as compared to traditional mediation.

The benefits include:

• Everything is typed so there is no need to repeat what was said or take notes
• It can be more cost-effective; there is no requirement for travel, room hire or paper.
• Parties participate remotely which can address safety concerns and allow for a more comfortable environment.
• Less confrontational or emotional
• Keeps parties more focused on the issues

Limitation of ODR

The text-based ODR process comes with a number of limitations as compared to the traditional mediation process:

• The process is impersonal
• It can be hard for the parties to express empathy
• There is a greater likelihood of the parties becoming keyboard warriors
• Lack of non-verbal communication
• The parties require competency in digital literacy e.g. typing speed
• Asynchronous text communication can have delays between messages
• There can technical difficulties with both the hardware and software
• Parties can easily type messages in the wrong room
• The mediator has less control
• There needs to be confidentiality compliance with the typed record
• The process creates added complexity for non-English speakers

How can ODR be improved

A number of the limitation and issues with ODR can be addressed through:

• Intake session with the mediator to build rapport
• Introduction to the ODR video
• An ODR guide for parties that covers:
  • Etiquette
  • Online communication
  • Process
• Use of video chat in mediation
• Able to view joint and private rooms simultaneously
• Alerts for new messages
• ‘typing…’ icon when the other party is typing
• Indicator for when a message is sent, delivered and read
• Mobile device compatibility
• Mediator termination option

Opportunities and challenges for ODR in law school curriculum

Following the introduction of the ODR simulation integration pilot in a law school ADR unit, it is clear that this is an exciting area which has a number of opportunities and challenges to consider as it is further developed and delivered.

• Group work based assessment has a number of challenges and this is no different in an ODR context.
• ODR is an innovative and new area to which students are being exposed. This requires expectations to be managed.
• For the pilot, we used one fact scenario for all the groups. There is an opportunity for students to develop their own fact scenario for their group to use in the ODR simulation.
• The ODR simulation will be limited by the platform being used. The platform used in the pilot was not designed for student assessment. There was no ability to export the content of the simulation for assessment submission. For the pilot, students were required to copy the text from the platform and paste it into a word document which was then submitted. This a clunky and inefficient process.

Conclusion

With the exponential increasing use of technology in education, government, commerce and courts there is an urgent need for students to be aware of new technological trends.  Whilst the use of ODR in legal practice is still very limited, there is wide acceptance that this will no longer be the case in the coming decade.  Hence, as legal education leaders, we need to train our students in the potential and use of ODR.

But as well as training legal students for future practice, the course has benefits for teaching students about ADR.  It allows students to watch and most importantly engage in ADR simulations.  This opportunity is lost in the traditional teaching of ADR.

[1] Zeleznikow, J., 2017. Can Artificial Intelligence and Online Dispute Resolution enhance efficiency and effectiveness in Courts. International Journal for Court Administration, 8(2).

 This post has been contributed by Associate Professor Jill Howieson, University of Western Australia. 

Introduction

This article asks and answers some questions about the new UWA Mediation Clinic and the theory behind the practice, education, and research that the Clinic conducts.  Jill Howieson is the Director of the Mediation Clinic and Lisha van Reyk is the Research Co-ordinator and Manager.

What are we doing in mediation at the UWA Law School?

At UWA Law School, and in the newly opened UWA Mediation Clinic, we teach, practice and research in a mentalizing-based approach to mediation (MBT-M).  The pioneers of MBT, Professors Peter Fonagy and Anthony Bateman from University College London are working with us in this endeavour and will be running the inaugural MBT-M training course at UWA in July – you can see the flyer attached.

Can you tell me a little bit more about MBT-M?

What we have noticed is that there is a wide variety of ways that mediation is practised and taught around the world and a wide roster of activities that mediators undertake.  However, there is a lack of an underpinning theory of interpersonal process to mediation.  We believe that MBT (Mentalization-based Treatment) is an underpinning theory that could provide mediators with a framework through which to understand the behaviour of parties during a mediation process.

MBT is an internationally recognised, evidence-based approach to working with people experiencing substantial conflict, distress, and relationship breakdown. It was originally developed to treat individuals experiencing personality disorder and has demonstrated subsequent efficacy in the treatment of a range of psychological and relational disturbances.  There are a range of mentalization-based treatments, including for children (MBT-C), families (MBT-F) and adolescents (MBT-A), and for chaotic multi-problem youth, AMBIT (adolescent mentalization-based integrative treatment).  These models have been developed mainly by groups associated with the Anna Freud National Centre for Children and Families, of which Professor Peter Fonagy is the CEO, and the Duchess of Cambridge is the Patron.

In MBT-M with its focus on mentalizing, the mediator can utilise interventions that facilitate and deepen the communication process. In contrast, counterproductive party behaviour can be halted and transformed by specific, indicated interventions by the mediator.  We anticipate that this can bring greater nuance and rigour to the implementation of mediation models, management of inter-party conflict, and interpretation of mediation success.

What is Mentalizing?

The mentalizing concept refers to the capacity to understand one’s own and other’s behaviour based on intentional mental states, such as feelings, thoughts, beliefs, and desires.  Intentional means it means something (Allen, Fonagy & Bateman, 2008).  It is the capacity to consider what one’s own mental states and those of others might mean and how this might influence behaviour.

Mentalizing comes from our understanding of the neuroscience and the differences between the Mentalizing System or theory of mind (ToM) system in the brain and the Mirror Neuron System.  The Mirror Neuron system is a coherent large-scale network which supports automatic action understanding and imitation.  The Mentalizing System is a smaller, less developed system but concerns regions that are all activated when we infer intentions referred to mental states.

Mentalizing is one aspect of social cognition sets us apart from other primates. It underpins our ability to deceive, cooperate and empathise, and to read others’ body language. It also enables us to accurately anticipate other people’s behaviour, almost as if we had read their minds. In a negotiation or mediation context, the research is showing that the mentalizing system needs to be activated for people to negotiate well and to make meaningful decisions.

It sounds great.  What happens when our mentalizing system isn’t activated?

When we are in conflict, or highly emotionally aroused (for whatever reasons, i.e. relationship breakdown, stress, lawyers’ behaviour, intimidation of the court etc) our mentalizing system is deactivated.  Mentalizing goes ‘offline’: our mentalizing capacity is reduced and this means that we are unable to act in a way that makes sense to ourselves and others.  It impairs our ability to make good decisions, vision realistic alternative futures or be flexible about our options and better able to consider alternative ways of resolving disputes.   This is where MBT comes in.  MBT can assist people to re-engage their mentalizing capacity or repair impaired mentalizing.  It is an integrated psychotherapeutic treatment that derives from philosophy, psychology, psychiatry, and attachment theory and utilises what is referred to as the Mentalizing Stance.

The Mentalizing Stance…?

When our mentalizing goes offline, we become alienated from understanding of self and others, rigid in our behaviours (work in automatic mode) and get stuck in our positions (as opposed to interests).  To restore and maintain our mentalizing function, we need to be encouraged to attend to the mental states in ourselves, and the mental states of others.  Practitioners can assist in this restoration by taking what is referred to as a ‘mentalizing stance’.

The mentalizing stance aims to foster a spirit of inquiry into and clarification of the person’s mental states to bring mentalizing online.  The mentalizing stance involves using the inquiry mode when asking about another’s experience and exploring the full detail of the person’s unique situation and experience, rather than assuming it follows a general pattern.  It is a non-judgmental, non-expert and entails having patience and taking the time to identify differences in perspectives and maintaining curiousity about the person’s experience.

OK, sounds relatively simple, is there more to it than this?

Yes, as well as taking a mentalizing stance, mediators need to be alert to non-mentalizing.  Of most importance is recognising psychic equivalence, pretend mode, and teleological understanding, all of which suggest that mentalizing has been lost or is impaired. Some examples that you might hear in negotiation and mediation might include: Physic equivalence (concrete mode), “There is absolutely no way that that offer is genuine.  She just wants to control me.  She does this to me all the time.” Pseudo mentalizing (pretend mode), “Oh yeah, I understand where they are coming from.  I understand that their excessive need to be right and fear of being wrong is going to lead them into making them feel insecure and that they might need to compensate for that by creating an offer that looks attractive.  I get it.” Or Teleological, “They arrived late for this mediation today because they don’t want to settle.”

At the UWA mediation clinic we will be investigating these non-mentalizing modes of behaviour and how mediators might intervene in ways that identify and shift non-mentalizing behaviour

So, back to the UWA Mediation Clinic… linking research, teaching and practice

At UWA, we teach the NMAS Facilitative Mediation course as underpinned by mentalizing theory. In this, would-be-mediators learn the basic skills involved in the facilitative model and the core principles of MBT with a focus on the mentalizing stance. As such, participants build a working model of mediation and, within this, competency both in recognising mentalizing in self/other and maintaining a curious stance. Early this year we opened the UWA Mediation Clinic to begin researching MBT-M and to develop a rigorous evidence-based approach to mediation.  In 2019, we will be introducing Clinical Legal Education for law students who will work with pro-bono mediators and act as mediation advocates for ‘real-life’ clients.  The UWA Mediation Clinic aims to provides excellence in the practice, research, and teaching of mediation.  You can read more here:  http://www.mediation.uwa.edu.au

And finally, the MBT-M training in July 2018

The MBT-M training course has been developed with Professors Bateman and Fonagy.  It aims to increase the capacity of those already working in mediation settings to understand and effectively intervene when parties are in conflict.   Attendees will learn to formulate conflict from a mentalizing perspective and to use this knowledge to engage the mentalizing capacities necessary for parties to communicate wisely. This training is relevant for those who work with cases that involve relationship breakdown (e.g., family law, workplace, and commercial disputes, etc.).  The training is open to all mediators.  You can Register at: http://www.trybooking.com/359372

 This post has been contributed by Jo Ewen[*] final year student at the College of Law and Justice, Victoria University.

My name is Jo Ewen and I am a final year student at Victoria University College of Law and Justice. I was fortunate enough to have been granted observer status at the United Nations and attended United Nations international trade law meetings in both UN Headquarters in New York and in Vienna, Austria. This is post is about that experience.

Changes in dispute settlement regimes across the globe over the previous half century were largely due to the implementation of the New York Convention ratified in 1958.[1]  Whether or not the latest convention on The Enforcement of International Commercial Settlement Agreements resulting from mediation settlement agreements which was finalised in February 2018 will have a similar impact will remain a question for quite some time.

As an observer I saw the United Nations Commission for International Trade Law (UNCITRAL) and Working Group II complete the draft convention; “United Nations Convention on International Settlement Agreements [resulting from mediation]” and a draft amended Model Law on international settlement agreements resulting from mediation in New York; “UNCITRAL Model Law on International Commercial Mediation (2002), With Amendments as adopted in 201*” and “UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements.”

UNCITRAL was established by the UN General Assembly in 1966 as the core legal body of its member nations. UNCITRAL Working Group II performs work to further the harmonization and modernization of trade laws of its members by preparing and promoting its work.   In fulfilling its functions, UNCITRAL coordinates with other law reform bodies to produce legislative instruments as texts with various foci such ason contracts for the sale of goods, transport, dispute resolution, procurement, infrastructure, development, international payments, electronic commerce and insolvency. International trade law is largely a consensus-based system that does not have an overarching sovereign to regulate the system and enforce penalties. There is currently a total of 157 country signatories.

Working Group II focuses on dispute settlement specifically, International arbitration-mediation/conciliation-settlement agreements.  At the recent New York[2] meeting and at the previous Working Group II meeting in Vienna[3] last October, I observed discussion and consultation by the delegates from over fifty nations and observers from national and international legal bodies in support of the adoption and use of UNCITRAL texts being drafted and considered. This forms part of all UNCITRAL’s work as a subsidiary of the General Assembly in modernising commercial law across international trade law frameworks.

Over five days of deliberations in New York, Working Group II discussions provided an opportunity for delegates to forward their own ideas thereby inviting the group for an inclusive compromise discussion.  The elected chair guided discussions using highly skilled diplomacy. The end product is confirmed to be finalised in July 2018.

Some discussions were on the laws governing conciliation; Important issues pertaining to the mediator/conciliator’s signature; and the necessity to work on the issue of defences.  Compromise proposals were established upon agreement to change the current perception of mediation and create alternatives to practices currently employed. Of particular note was the significant resistance found by the group during “Article 5- Grounds for refusing to grant relief’ deliberations.

There were commendations shared among the group for each other’s constructive input and stellar unseen work from the Secretariat. The week of robust debate resulted in a workable document with wide applicability.

During concluding talks, there was an expression of hope for the continuation of an open debate in the tradition of the commission and also hope expressed for continued consensus on its work on mediation mirroring the phase of international commercial arbitration.  Other proposals were made with respect to expedited arbitration and adjudication work affecting investment dispute settlement as well as proposals to look into the scope of impact under the NYC and compare it to now.

Attending this meeting has fuelled my consideration of encountered difficulties for Australian exporters.  The lingering issue is enforcement; an arbitration award or settlement agreement; What is more, are matters of compliance with signatory obligations for UNCITRAL members in this region. Whether or not doing business in these countries is done at a risk or if in doing so, at what thresholds does it become necessary for increased charged premiums to offset it? Following on, having attended these meetings as an Australian law student I’m also enthusiastic about conducting research into whether or not enforcement is a significant problem for many of Australia’s trade partners in the Asia Pacific; Particularly the Indian sub-continent, China, Vietnam, and elsewhere in South East Asia.

[*] Victoria University Honours Law student in the final academic year with an interest in the specialist area of dispute settlement. Previously completed Bachelor of Science degree at VU and worked as a technical data specialist with the Australian Department of Defence working with major defence aerospace contractors throughout Australia. In the course of my law studies, I travelled to six countries, including when studying International Business Law in Germany in 2017. In recent months, having been granted Observer status and the United Nations; Attended United Nations international trade law meetings in both UN Headquarters in New York and in Vienna, Austria.

[1] 1958 Convention on the Recognition & Enforcement of Foreign Arbitral Awards, commonly referred to as the New York Convention.

[2] 68th Session, 4-9 February 2018, New York

^[3] 67th session, 2-6 October 2017, Vienna

The Senate Legal and Constitutional Affairs Legislation Committee is currently inquiring into the Bill that proposes to introduce a Parent Management System, ‘an innovative forum for resolving simpler family law disputes between self-represented litigants’. The Committee is due to report on 23 March 2018.

The Law Council of Australia opposes the introduction of a new layer of complexity into an already complex system. It argues that decisions about children should be made by judicial officers, and that the funds allocated to the proposal would be better used to strengthen existing court services including counselling and contact centres.

The proposed Parent Management System is one of a number of budget initiatives injecting much needed resources into the family law system. This included funds for additional domestic violence units, additional family consultants and to support community legal centres and ATSI legal services in their important work.

A bill was also introduced in December 2017 to extend the jurisdiction of state and territory magistrate’s courts to determine more disputes about property, largely as a result of recommendations made by the Family Law Council report on families with complex needs and the Victorian Royal Commission into family violence.

Parent Management System

How the proposed Parent Management System will work is not yet clearly articulated. Such a model was proposed by a family law reform paper and described a ‘multi-disciplinary and inquisitorial tribunal freed from the constraints of the adversarial system’, intended to be informal, cost effective, simple and user-friendly.

It was suggested that such a tribunal could be modelled on the Oregon Informal Domestic Relations Trial. This is a simplified trial process suspending the rules of evidence and allowing parties to speak directly to the judge.  It was specifically intended to give self-represented litigants a voice in the proceedings, and considered suitable for cases involving domestic violence. Unfortunately the evaluation of the process was not able to recruit sufficient self-represented litigants to determine what they felt about the trial, but lawyers thought their clients found it fairer and more timely.

Determination or self-determination?

Both trials and tribunals are determinative processes – experts consider or gather evidence and impose a decision on the parties.  This may be appropriate in many instances, especially where one or both parent’s capacity to reach their own decisions is compromised by complex histories of serious family violence, mental ill-health, addictions and socio-economic disadvantage. The research makes it clear that vulnerable parties with complex histories dominate family courts and other family law services.

Being heard

The research base informing the Oregon model indicated that self-represented litigants wanted a greater voice in and more control over post separation processes. Research in Canada also supports the view that being heard is an important motivating factor for many self-represented litigants.

Mediation can provide the opportunity for parties to speak, be heard, to work collaboratively and cooperatively to decide their own outcomes. Mediation is not always suitable for parties with histories of violence however, as it can be difficult for the mediator to manage power differentials to ensure parties can participate safely and fully.

A safe, child-sensitive and legally-assisted mediation model

A safe, child-sensitive and legally-assisted model of family mediation has been developed in Australia. It is designed to support parties who have experienced and perpetrated family violence to understand the process, learn how to communicate and negotiate safely, take responsibility for their violent behaviour and work out outcomes that are best and safe for their children with the support of a multidisciplinary team professionals.

Professional collaboration

Its multi-agency, multi-professional case-management approach models the kind of respectful and co-operative professional collaborations we should be encouraging in the family law system. It offers an example of effective service integration within the family law system.

Coordinated family dispute resolution

Coordinated family dispute resolution has been piloted, evaluated and demonstrated in many instances to safely ‘empower parents to make appropriate arrangements for their children’, and its broader roll-out has been recommended.  It also achieves the objectives of the Parent Management System –  informality, cost effectiveness, simplicity and user-friendliness.

Inquiries have recommended implementation of CFDR and this kind of case-managed integrated service for complex matters in the family relationships sector. The adoption of CFDR has been recommended by family law community agencies and the model is being adapted by some services to better support vulnerable separating clients.

There is no easy solution to resolve family law disputes, especially where the matters are complex and parties unrepresented.  We are unlikely to transform it, but we can improve it.

Surely a safe, proven, collaborative, integrated, cost-effective and self-determining process is preferable for many parents and children, the family law system and the broader community, to a determinative process that is unknown and untested?

This post has also been published on my website and on Linked In.

Please consider saving the date for the 7th ADR Research Roundtable, which will be held at the University of the Sunshine Coast on 3-4 December 2018.

A call for papers will be issued closer to the date.   Early Career Researchers and PhD students are particularly encourage to participate – the Roundtable is an opportunity to present work in progress and receive feedback and critique in a supportive and friendly environment, and to network with leading dispute resolution academics.

This post is part of our series of summaries of works in progress presented at the 6^th ADRRN Roundtable held in Dunedin in December 2017.

Image by Mohammed abushaban (Own work) [CC BY-SA 3.0 (https://creativecommons.org/licenses/by-sa/3.0)%5D, via Wikimedia Commons

Although lawyers are frequently called upon to represent their clients in mediation, lawyers’ professional associations have not issued additional or supplementary rules of conduct for mediation practice. Some law reform agencies[1] and commentators[2] have argued that mediation requires its own rules but discussion on the issue has stalled. In this short account of a paper delivered at the ADRRN Roundtable, I argue that the status quo – in which lawyers in mediation are governed by the current rules of conduct – should be maintained. The rules provide adequate guidance for lawyers, and adequate protection for persons impacted by mediation.

Position of legal representatives under existing rules of conduct

In the absence of specific rules for mediation, legal representatives are governed by the profession’s generic rules of conduct,[3] together with other components of the law of lawyering (including general law like the law of contract and torts; specific legislation such as the Legal Profession Legislation; and general legislation like Australian Consumer Law). In Australia, there is one set of professional conduct rules for solicitors (most state/territory rules are modelled on the Australian Solicitors Conduct Rules issued by the Law Council of Australia)[4] and another for barristers (again in most jurisdictions, they are based on model rules, the Australian Bar Rules issued by the Australian Bar Association).[5]

One accommodation for mediation has been made in the rules – the definition of ‘court’ has been extended to include ‘mediations’ (but this is not the same as making special provision for mediation and is itself a source of some confusion as to whether the drafters meant the mediation process or mediators).

The legal profession’s rules of conduct are general in their orientation. They set out general mandates for lawyers such as a duty to act with honesty, courtesy and fairness towards every person and entity with whom lawyers engage in the course of legal practice (these rules tend to encourage cooperation between practitioners); and a duty to act in the best interests of clients. The courts have held that general terms, such as that of ‘courtesy’, take their meaning from the context in which particular behaviour occurs.[6] The rules also include general prohibitions such as a duty to refrain from conduct which might lead the legal profession to be held in disrepute.

The rules also include a series of specific duties which can be categorised according to whether they are owed to courts, clients, and other parties including opponents. These include a duty never to mislead or deceive the court; a duty of confidentiality owed to clients; and a duty not to mislead opponents.

While there is a duty of honesty owed to everyone with whom the lawyer has dealings, where honesty refers to accuracy of information conveyed, there is no duty of candour ie there is no general duty to reveal information to courts, mediators, opponents and other third parties. There are exceptions where there is an obligation to speak up including the following:

1. When dealing with a court, an advocate has a duty to inform the judge about relevant legal authorities and legislation.
2. In ex parte applications (ie those where the other party is absent) an advocate must inform the judge of any relevant adverse matters of fact.
3. If a practitioner has made a statement which, though true at the time it was made, has since become false, he or she must correct the statement (this was the rule offended by Messrs Mullins and Garratt).[7]
4. A practitioner also has an obligation to correct a statement which is misleading because of the absence of some qualifying statement (this exception covers half-truths).

The rules establish a kind of hierarchy of obligations. The lawyer’s paramount obligation is to the court and the administration of justice (which is, in essence, a duty owed to society and not to an individual judge). The lawyer’s secondary obligations are owed to his or her clients. If there is a conflict between duties owed to the court (and the administration of justice) and those owed to a client, the duties owed to the court must prevail. The lawyer’s tertiary obligations are owed to third parties. If there is a conflict between a duty owed to a client and a duty owed to a third party, the duty to the client will usually prevail. Some authors point to this aspect of the regulatory system governing lawyers and argue that the rules give insufficient weight to the interests of other parties. However, the law of lawyering recognises that there may be circumstances where a breach of a duty owed to a third party – such as breach of an obligation not to mislead, is so serious as to amount to a breach of the duty owed to the administration of justice. In this way, the law recognises that lawyers in negotiation should refrain from assisting a client by ‘unconscionable’ means and from aiming to achieve ‘unconscionable’ ends.[8]

In my opinion, taken together these provisions are suitable for the regulation of lawyer conduct in mediation. Given the nature of mediation, it is the rules governing communications which are of most importance. In essence, the rules provide that: a lawyer is not generally required to reveal information, but if he or she chooses to speak,[9] the information conveyed must be accurate. This is a very effective measure for it is impossible for a party to put a case, or to respond to an opponent’s case, without making some statements.

Problematic aspects of proposals for new rules

There have been calls for the promulgation of rules of conduct requiring higher standards of disclosure, good faith participation, a duty of cooperation and an (unspecified) duty of fairness, and use of non-adversarial interest-based negotiation. There are problems with these proposals, including the following:

• lack of consensus among proponents for change over the appropriate standard of disclosure required in mediation.
• lack of consensus over, and uncertainty attached to, the meaning of concepts such as good faith and cooperation.
• difficulty in articulating rules of this nature with any precision and in specifying what is and what is not acceptable behaviour.
• difficulties of monitoring and enforcing compliance with rules of the kind proposed together with possible inroads which might be made into the confidentiality of the mediation process.
• destruction of the informality and flexibility which are hallmarks of mediation.[10]

There are a range of problems with proposals for legal representatives to use interest-based negotiation and to be less adversarial in their conduct. They include the following:

• parties need partisan legal representation in mediation to protect and enhance self-determination and its underlying requirement of informed consent. Parties need to know their legal rights and obligations.
• every negotiation will involve some positional negotiation and every negotiation benefits from some element of competition.
• every negotiator must choose, within the changing dynamics of negotiation, where they should be at any given moment in time on the ‘tightropes of negotiation’, treading a line between honesty as against misrepresentation; openness as against non-disclosure and cooperation as against competition.

These problems may not be insurmountable but more focused discussion involving all stakeholders is required. In the interim, the current rules of conduct provide adequate guidance for lawyers in mediation and adequate protection for the parties and other persons impacted by a mediation. The existing rules of conduct allow legal representatives to exercise discretion in relation to matters such as candour, cooperation and the approach to negotiation that they adopt at any given moment in time. This is perfectly consistent with the nature of mediation with one mediation likely to be different from the next. Despite the diversity of mediation practice, the legal representative’s basic position remains the same and this is reflected in the current rules of conduct. A lawyer remains an advocate for the client’s interests but he or she recognises that some disclosure is necessary for a productive mediation, and that cooperation with an ‘opponent’ and settlement is sometimes in the client’s best interests. Save for the fact that the drafters need to clarify the meaning of ‘mediation’ in the definition of court, the current professional conduct rules are ‘about right’.

[1] For instance, the Australian Law Reform Commission recommended the development of standards of conduct for legal representatives in ADR processes in its Managing Justice Report issued in 2000: see the Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System, Report No 89 (2000) [3.119]. Also see National Alternative Dispute Resolution Advisory Council, Maintaining and Enhancing the Integrity of ADR Processes: From Principles to Practice Through People, A Report to the Attorney-General (February 2011).

[2] In Australia, see Christine Parker and Adrian Evans, Inside Lawyers’ Ethics (Cambridge University Press, 2^nd ed, 2014) 217-25. In the US, see Kimberlee K Kovach, ‘Lawyer Ethics Must Keep Pace with Practice: Plurality in Lawyering Roles Demands Diverse and Innovative Ethical Standards’ (2002-2003) 39 Idaho Law Review 399, 413-4; Carrie Menkel-Meadow, ‘Ethics in Alternative Dispute Resolution: New Issues, No Answers From the Adversary Conception of Lawyers’ Responsibility’ (1997) 38 South Texas Law Review 407, 410.

[3] See generally, Bobette Wolski, ‘An Evaluation of the Rules of Conduct Governing Legal Representatives in Mediation: Challenges for Rule Drafters and a Response to Jim Mason’ (2013) 16 Legal Ethics 182.

[4] Australian Solicitors Conduct Rules were adopted by the Law Council of Australia in June 2011 and last updated in 2015. The rules, as adopted, differ slightly in each jurisdiction.

[5] These rules also differ slightly in each jurisdiction. See, for example, in Victoria and NSW, the Legal Profession Uniform Conduct (Barristers) Rules 2015, commencing operation on 1 July 2015 and current at 2 September 2016.

[6] Lander v Council of the Law Society of the Australian Capital Territory [2009] ACTSC 117 (11^th September 2009) [43] (Higgins CJ, Gray and Refshauge JJ).

[7] See Legal Services Commissioner v Mullins [2006] LPT 012 (23 November 2006); Legal Services Commissioner v Garrett [2009] LPT 12 (1 May 2009).

[8] Murray L Schwartz, ‘The Professionalism and Accountability of Lawyers’ (1978) 66 California Law Review 669, 671.

[9] Of course, the lawyer must comply with the duty of confidentiality owed to a client and will, in most circumstances, need to obtain the client’s consent to reveal the information.

[10] Reed Elizabeth Loder, ‘Tighter Rules of Professional Conduct: Saltwater for Thirst?’ (1987-1988) 1 Georgetown Journal of Legal Ethics 311, 319.

Third Party Neutrals in Dispute Resolution Study Group

International Labor and Employment Relations Association (ILERA)

World Congress 2018

July 23-27, 2018, Seoul, South Korea

This post has been contributed by Professor Johanna Macneil, ADR Research Network member and Assistant Dean, Teaching and Learning, Faculty of Business and Law at the University of Newcastle.

We would like to invite your participation in the newly-established Third Party Neutral in Dispute Resolution Study Group of the International Labor and Employment Relations Association (ILERA). In particular, we would like to invite you to join us in our first session together at the ILERA World Congress in Seoul in July.

PARTICIPATION IN THE STUDY GROUP

The Third Party Neutrals in Dispute Resolution Study Group is open to everyone interested and involved in labour and employment dispute prevention, resolution, adjudication, arbitration, mediation-arbitration, conciliation and mediation. That includes third party neutrals, practitioners, policy makers and regulators as well as academics. Co-Chairs are Chris Albertyn, mediator and arbitrator, (see http://www.albertyn.ca) and Deputy President Anna Booth of Australia’s federal industrial tribunal, the Fair Work Commission (see http://www.fwc.gov.au).

A small, provisional Study Group Committee of academics and practitioners has been established, before its expansion and formal confirmation at the Seoul ILERA World Congress, 23-27 July 2018.

SCOPE OF THE STUDY GROUP

The Third Party Neutrals in Dispute Resolution Study Group invites everyone interested in how third parties are involved in the prevention and settlement of disputes in the labour and employment field to join us.

Participants in the Study Group may be interested in any or all of the following:

• the study of labour and employment issues and disputes arising at different levels:
  • at international level (over employment standards, over labour agreements as part of trade agreements);
  • at a national level (between confederations of trade unions and employers);
  • at a regional or sectoral level (between trades, trade union federations and employer
    associations);
  • at an enterprise or plant level (between trade unions and particular employers); or
  • between individual employees and individual employers;
• all methods used to prevent or resolve those disputes which involve assistance or intervention by a third party, either a court, a state agency or an agreed private resolution mechanism;
• all types of resolution, that is, either binding and determinative, or advisory, or facilitative, including what are deemed alternative forms of dispute resolution (ADR);
• remedies available across jurisdictions, and under what forms of labour law, especially when considered in comparative perspective;
• all types of outcomes sought or achieved which, along with the resolution of a dispute, may include effects on relationships, individual, group, organisational, industry, or societal measures;
• comparative study, looking at differences in the methods of dispute resolution, and in the varieties of institutions in different jurisdictions and countries used to prevent or settle labour and employment disputes; or
• any other new or emerging issues in relation to the work of third parties in the labour and employment field.

ILERA WORLD CONGRESS

The initial opportunity to pursue these studies and discussions will be at the ILERA World Congress in Seoul July 23-27, 2018 

Session in the formal program, 24-27 July
We will have a session allocated in Seoul during the formal program, at which some papers will be presented on the role of the third party neutral. If you would like to present a paper in our organised session, please send an abstract, consistent with the guidelines on the conference website, by NO LATER than 25 January 2018, to our academic co-ordinator Professor Johanna Macneil at Johanna.macneil@newcastle.edu.au, copied to the co-ordinator of the study group,
Chris Albertyn at chrisalbertyn@icloud.com.

Meeting of the Third Party Neutrals in Dispute Resolution Study Group
We will also arrange an opportunity to discuss plans for future meetings of the Study Group, for continued interaction between practitioners and academics on areas of common comparative interest. Even if you don’t have a paper for this conference, we would warmly welcome your ideas about participation in the future. (Please note, this will be arranged at a convenient time during the formal program, not on 23 July when other study group meetings are held.)

More information
More information about the Seoul conference is provided via the ILERA 2018 website. If you have any questions about the study group activities, please email Chris Albertyn or Johanna Macneil.

Regards
ILERA Third Party Neutrals in Dispute Resolution Study Group