This post was written by Pauline Roach and is part of our series of summaries of works in progress presented at the 6^th ADRRN Roundtable held in Dunedin in December 2017. Pauline was involved closely in the development and implementation of the system at the Roads and Maritime Services of New South Wales described here.

This post provides an overview of the dispute resolution program developed and introduced at the Roads and Maritime Services (RMS), formerly the Roads and Traffic Authority of NSW. In 2003, a review of the organisations’ grievance policy was undertaken.  Following this review the organisation sought to develop a corporate culture where the principles of alternate dispute resolution (ADR) could succeed and were accepted by staff.  The aim was to assist in the early identification, management and resolution of workplace disputes.

The current literature supports the view that workplace dispute resolution is more effective when it is supported by the whole organisation rather than used in a one off context.  (Sourdin T. 2016; Astor H, Chinkin C 2002; McKenzie D 2015; Saundry R, Latreille p, Dickens l, Teague P, Urwin P & Wibberley G 2014). The RMS system was a good example of a whole of organisational dispute management strategy.

At RMS, a tailored dispute resolution strategy was developed for each dispute. The most appropriate dispute resolution intervention was applied after a preliminary assessment. Mediation was one of a package of ADR tools, policies and procedures which were integrated into a range of human resource policies. The available dispute management strategies included: the disputants, manager and/or workgroup participating in conflict coaching (pre and post mediation), dispute counselling, mediation, referral to human resources for advice, or referral for legal advice.

Prior to any dispute resolution intervention a detailed intake interview was conducted. The intake interview was conducted seven to ten days prior to the dispute resolution process to which the matter would be referred.  Intake was a critical component of the dispute resolution strategy. The intake interview was divided into two significant sections: one to gather information from the organisations’ perspective and the other to prepare the disputant to fully participate in the dispute resolution process.

1. ORGANISATIONAL PERSPECTIVE

From the organisations’ perspective it was important to establish the following:

• is dispute resolution appropriate?
• are the issues a breach of policy or current legislation?
• should the matter be referred to human resources for investigation and / or disciplinary action?
• What previous action has the organisation taken to resolve the issue?

The intake process involved interviewing the disputants, the manager and possibly the union representative to obtain a history of the dispute.  This also provided an opportunity to begin considering the most appropriate dispute resolution practitioner for the matter.

2. DISPUTANTS’ PERSPECTIVE

From the disputants’ perspective the intake process:

• obtain a history of the dispute;
• identify the people involved;
• build a rapport with the disputants and reassure them that the ADR practioners do not take sides;
• introduce the concepts of dispute resolution and ensure they understand the dispute resolution process;
• assist the disputants to focus on outcomes;
• reality check outcomes or do the disputants just want to punish the other person;
• identify factors that may prevent resolution – power imbalance between the parties, is there a threat of violence?
• Gain agreement on date, time and location for the session.

The intake process intended to increase the likelihood of the ADR intervention succeeding.  It aimed to ensure that the disputants understood the process, had the information they needed and that the right people were sitting around the table. It required an organisational commitment to allow participants the time to engage in a thorough intake process.

Over a nine year period RMS developed and implemented a holistic dispute resolution process, with a rigorous intake process. Mediation was part of a system of dispute resolution tools that were integrated into a wide range of the organisation’s policies. Resolution of workplace disputes requires a strategic and explicit cultural change rather than a piece meal approach. The intake process is a critical tool in achieving this.

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.

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“How small, of all that human hearts endure,

That part which laws or kings can cause or cure”

Oliver Goldsmith The Traveller

For thousands of years humankind has used language to co-operate in the development of communities, societies and civilizations.  Numerous language scholars including Chomsky[1], Tomasello[2] and Pinker[3], have proffered theories about the development of language but its true origins remain hidden in the mists of time.  An Old Testament biblical text tells the story of the ancient inhabitants of Babylon co-operating in the construction of a tower so tall and magnificent that it would reach up into the heavens and give them direct access to God.  According to the legend, God was so enraged by their attempt to usurp his authority that he made each of them speak a different language so that they could no longer understand or communicate with each other and their construction efforts were frustrated.

The story inspires reflection on the extent to which we depend on language in our relationships with others in society whether at the personal, community or international level.  My paper that I workshopped at the ADRRN round table in New Zealand takes up this theme and considers, by reference to some of the recent language literature and to my PhD research data, how language influences human relationships and its capacity for peace making and conflict resolution.  It uses examples taken from various historical settings to illustrate how language has informed human behaviour in significant and powerful respects. It concludes that dispute resolution best practice has recognized and implemented appropriate strategies for reframing poor communication techniques, but some of those practices are yet to achieve universal acceptance in some areas of mediation especially where the process is being conducted in connection with litigation.

There is another more recent story, this time from the New Testament history of early Christianity, in which the disciples of Christ stood on a balcony in Jerusalem at Pentecost time preaching to hordes of visitors who had gathered in Jerusalem from the whole of the then known world.  According to the legend, although the speakers addressed their homily in Hebrew, each of the visitors was able to hear the speaker in his own tongue, thereby completing a perfect line of communication.  I have concluded in my paper that, whilst we have done much as dispute resolution practitioners to advance the cause of peace and conflict resolution through addressing language issues and reframing toxic, negative and unhelpful language, there is still work to be done and our journey from Babylon to Pentecost is not yet over.

One of the language barriers that I perceive is between the dispute resolution field and the legal profession. What is of concern in the dispute resolution narrative is that the significant advantages which continue to accrue to disputants by learning the skills of respectful discourse and positive problem-focused communication, so familiar to dispute resolution practitioners, do not yet appear to have been successfully communicated to (or adopted by) the legal profession to where, paradoxically, many disputants first turn for a solution to their disputes.  As recently as this week (14^th December, 2017), during a speech addressing justice issues arising from the Royal Commission into Institutional Responses to Child Sexual Abuse, the Royal Commissioner, Justice McClelland, referred disparagingly to lawyers as a potential source of redress for survivors of child abuse.  He said:

“In some cases the aggressive hand of the lawyer was engaged, ensuring that an appropriate and just response to a survivor was not possible.”[4] 

The clear inference from the Royal Commissioner’s remarks is that engagement of a lawyer, far from facilitating access to justice, ensures that just outcomes are impossible.  Like the builders in the Tower of Babel legend, the suggestion is that clients and dispute resolution practitioners are speaking to lawyers but they either do not understand us or they do not wish to hear.  The challenge for us, it seems, is to establish effective lines of communication and to speak persuasively so that they are convinced of the necessity for principled dispute resolution solutions.  Only then will our journey have been completed.

This paper is very much in draft form and in need of significant work.  When it has been completed it is my hope that it will be submitted for publication in a peer reviewed journal such as the Australasian Dispute Resolution Journal.

[1] N Chomsky Powers and Prospects: Reflections on Human Nature and the Social Order (London, 1996, Pluto Press p.30)

[2] M Tomasello, B Velischkovskii, D M Rumbaugh (eds) The Cultural Roots of Language Communicating meaning: The Evolution and Development of Language Mahwah, N.J.: L. Erlbaum. ISBN 978-0-8058-2118-5. OCLC

[3] S. Pinker, P Bloom (1990). “Natural language and natural selection”. Behavioral and Brain Sciences. 13 (4): 707–784. doi:10.1017/S0140525X00081061.

[4] As reported in the Newcastle Morning Herald on 15^th December, 2017 at p 6

Written by Dorcas Quek Anderson, Singapore Management University.

Mediation – a legitimacy deficit?

Mediation has been plagued with a problem of legitimacy.[1] Genn stated that mediation “does not contribute to substantive justice because mediation requires the parties to relinquish ideas of legal rights during mediation and focus, instead, on problem-solving”.[2] Mediation appears to be all about procedural justice, a concept that is associated with perceptions of fair treatment. And procedural justice does not seem to have any discernible link with substantive justice, in terms of giving effect to well-accepted norms.

This blog entry is drawn from a paper that was presented at the Australasian Dispute Resolution Research Network 6th Annual Roundtable and the LSAANZ Conference. I argue that there is an invaluable connection between procedural and substantive justice that should be further articulated and strengthened. However, there are also considerable inadequacies in the current mediation principles, causing weak links between procedural and substantive justice. I focus here on only one aspect of the paper – that the mediation principle of “norm education” should be further developed to enhance party autonomy and more adequately advance substantive justice.

 The undisputed link between procedural and substantive justice

The link between procedural justice and substantive justice has been indisputably established by socio-psychological research examining the participants’ subjective assessment about the fairness of the dispute resolution process. Welsh, drawing from the work of Lind, Tyler and others, highlighted how positive perceptions of procedural justice would likely lead to favorable perceptions of substantive fairness and more durable agreements.[3]  Four aspects of procedural justice have been found to consistently contribute to high perceptions of justice – voice;[4] a sense of being heard and understood,[5] being treated with dignity or courtesy;[6] and being given even-handed treatment.[7] Many of these aspects strikingly mirror current mediation principles, such as mediator impartiality. The foundational mediation principle of party autonomy advances many of the above aspects of procedural justice. Self-determination involves direct participation by the parties in communicating and negotiating; party control over the substantive norms that guide their decision-making; and party involvement in the creation of settlement options.[8] Evidently, these aspects of self-determination help to give disputants the opportunity to voice their views, feel heard by the mediator and the other party and be accorded respect and a sense of dignity.

However, moving beyond parties’ perceptions of fairness, there remains the question of whether the relevant norms are actually considered within the mediation process. [9]

Substantive justice in mediation – the complex interaction of norms

My full paper examines how substantive justice is achieved through the complex interaction of a variety of norms within mediation. Some of these norms take the form of broad principles such as equity, equality and need. Other norms comprise individual preferences and values, or shared standards of a community to which the disputant belongs. Legal standards are the most common norms alluded to, given the dominance of the courts in publicly establishing norms for the society.[10] There are evidently very diverse sources of norms at play within each mediation, and not all the competing norms are given final recognition in the mediation outcome. According to the philosophy of party empowerment in mediation, it appears as if norms are determined only by the parties. In reality, many of their subjective norms are influenced by external standards.[11]

Party autonomy is exercised within limits of external norms

It is argued that there is now growing consensus that party autonomy over the mediation outcome must be exercised within the limits of certain external norms. Waldman and Akin Ojelabi observed that many mediation codes caution against excessive mediator influence, but simultaneously call for the mediator to terminate the process if an unconscionable or illegal agreement appears likely. They argue that these provisions implicitly recognise that mediation agreements must meet a minimal threshold of justice.[12]

The global sentiment encapsulated in mediation ethical codes indeed points overwhelmingly to the presence of overarching norms that limit party acceptability. The Singapore Standards oblige the mediator to withdraw from the mediation if the mediation has assumed “an unconscionable or illegal character” or is likely to result in a settlement “against public policy or of an illegal nature”.[13] This is clear endorsement of mediation taking place within the limit of public norms. The Australian Standards allude to such limits by imposing the duty to terminate when a participant is misusing the mediation, not engaging in the mediation in good faith or the participant’s safety is at risk.[14] Singapore’s Mediation Act allows a mediated settlement agreement to be recorded as a court order, except when the agreement contravenes public policy; is not capable of being enforced as an order of court; or is not in the best interest of a child.[15] Additionally, UNCITRAL’s current draft provisions for enforcement of mediated settlements do not allow enforceability where the agreement is “null and void, inoperative or incapable of being performed under the law to which parties have subjected it to”, and when enforcement would be “contrary to public policy”.[16]

A proposed mediation principle of “norm education”

In relation to critical, well-established norms that are contained in codes or are essential in certain types of mediation, the parties’ autonomy is clearly circumscribed by external norms. However, these norms may not be given effect to if mediation is characterised by adherence merely to the parties’ values. What if there are well-established norms that the parties have yet to consider? Or what if the parties’ discussions are veering close to a result that cannot be enforced, or an agreement that may infringe legal principles? In such circumstances, there is surely good reason for the mediator to educate the parties on norms.

However, there is yet to be a well-established mediation principle of “norm education”. The current mediation standards in Australia and Singapore allow the mediator to terminate the mediation if there is bad faith or misuse of the mediation,[17] or when it is likely to result in a settlement that is against public policy or is illegal.[18] The closest principle to norm education is “informed consent” in the Australian Standards, which suggests that the mediator should, as far as possible, attempt to ensure that disputants have access to sources of advice and information.[19] The principle of informed consent is, however, severely limited when it is not feasible for the disputants to obtain independent legal advice.

It is argued that there is room to allow the mediator to educate the parties on such norms where they are unaware of them, instead of only having the drastic option of withdrawing from the mediation. After all, such practices are in reality taking place in mediation practice. Waldman wrote about the norm-educating model used commonly in divorce mediations, wrongful termination and other court-referred cases mediated “in the thick shadow of the law”. She contends that the consideration of social norms in this model helps “enhance autonomy by enabling parties to make the most informed decisions possible”.[20]. It is therefore suggested that the mediation community consider the principle of norm education in relation to critical norms encapsulated in codes and legislation. Such a principle would be invaluable in advancing substantive justice. Continue reading →

This blog post written by Dr Sue Prince, University of Exeter is an abridged version of paper delivered at the ADR Research Network Roundtable held from 4-5 December 2017 in Dunedin, New Zealand.

The court as an imposing building exists as a symbol of the ideal of justice: the Central Criminal Court at the Old Bailey in London has Lady Justice standing on the top of its dome, demonstrating the vital importance of the rule of law. Yet the symbolism of the local court as a fixture of the community no longer holds true. Certainly, in the civil courts there are many unresolved problems with the numbers of litigants-in-person who cannot afford legal support. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 gave rise to so many litigants-in-person that judges had to reconsider their approaches and become more inquisitorial in approach and less adversarial.

The County Courts Act 1846, which established the county courts, came into force with the idea that courts should be cheaper and more accessible. In 1847, following the introduction of the statute, there were 491 courts in England and Wales. Now, 170 years later, the estate has diminished to 173 county court buildings.   Civil courts are no longer so easily accessible and rarely occupy a place centrally in the community as they did in the past. Yet, the number of cases going to trial has also diminished and the number of alternative dispute resolution processes has increased: ombudsman and unregulated providers. As processes change so does their role. The building is no longer physically accessible but nor is it financially accessible to most, due to the lack of legal aid and increases in court fees that have been introduced by successive government policies. The system is no longer fit for purpose.

So, is it possible then to design an alternative system for small, low value cases using online tools that might operate to support court users through the legal system in a way that the system in operation in the court building never could? This was a question asked of a group of us who formed the Civil Justice Council Online Dispute Resolution Advisory Group a couple of years ago. We recommended the creation of an online court with online judges and online facilitators or mediators as well as an initial stage offering online information and help.    Such changes were supported by the Master of the Rolls, John Dyson LJ, who described our report as a catalyst for far-reaching reforms. As a potential solution to similar problems described above, online courts are being contemplated in various forms across the world.

In British Columbia, Canada, for example, the new online small claims process has replaced the court building with an end-to-end process which provides legal advice and direction, mediation and the potential for an online judge. In the UK, plans are now afoot for cases under £25,000 to be referred to an ‘Online Solutions Court’ which will integrate three distinct stages of justice.   In our ODR Report, we said that ODR was not science fiction. It proved that this was the case because the UK Government committed £700M to fully digitalise the courts, and to reform the legal system. Currently, HMCTS in the UK is embarking on the most ambitious programme of reform which embodies the ‘Online Solutions Court’ and other agile, digital by default reforms, currently in beta testing phase but soon to be launched across England and Wales.

Online dispute resolution has many of the qualities offered by ADR. Designers of current ODR systems tend to focus on the needs of the user and to facilitate these needs through the creation of pathways along which a litigant will travel, answering questions to personalise the experience, and to help specify the sort of actions required to meet the challenges of the legal system. As with ADR, ODR attempts to facilitate and empower, albeit not through face-to-face processes.   ODR has the potential to offer a different service: a series of pathways and gateways through the legal system, with the opportunity for the user to ask questions, or to have terms defined as they arise. In England and Wales, the proposal is for a facilitator to attempt to mediate the dispute before it goes before an online judge. Yet, the system itself exists as a form of ADR, because the technology operates as a form of ‘fourth estate’ to enable resolution where possible, or provide information along the way.   The very idea of introducing ODR precipitates a debate on many aspects of what the online court looks like; how it meets the demands of the rule of law, and what needs to change to give better access to justice. The role of public legal education and assistance become vitally important in a system which is not designed around the assumption of legal representation. The architecture of dispute resolution is not impeded by the introduction of ODR but instead it offers an opportunity to re-examine the court process and to see that what happens outside the building is as important, if not more important, as in the hearing room itself.

This post was written by Jacqueline Weinberg from Monash University and is part of our series of summaries of works in progress presented at the 6^th ADRRN Roundtable held in Dunedin in December 2017

Over the last 30 years alternative dispute resolution (ADR) has become more prominent in Australian legal practice due to the need to reduce the cost of access to justice and to provide more expedient and informal alternatives to litigation. There is a shift away from adjudicative or determinative processes and towards more cooperative processes for dispute resolution.[1] The rigidity, complexity and cost of formal structures has meant that courts, tribunals and other rights-based structures are often inaccessible to all but a few in society.[2] The incapacity of these structures to resolve conflict, although they may determine rights, has been a relevant factor in the development of alternative options for dispute resolution.[3] Clearly, Australian legal practice is undergoing change. As legal educators, we need to ask: how should we be preparing law students entering practice for these changes? How can we ensure that once they become lawyers, our students will not rely entirely on litigious methods to assist their clients but instead look at alternatives for dispute resolution?

Richard Susskind in his book Tomorrow’s Lawyers [4] states that law schools cannot ignore future practice and law students should be provided with options, to study current and future trends in legal services and to learn some key 21^st century legal skills that will support future law jobs.[5] ADR is a growing area of legal practice resulting in changes in models of client service and advocacy.[6] The issue then is how best to prepare the young lawyers for these changes. According to Sourdin, legal academics (and law schools) play an essential role in the training and education of lawyers and in interpreting these changes.[7] Sourdin sees legal education and training as ‘a continuum along which the skills and values of the competent lawyer are developed.’[8] There is a need to explore whether clinical legal education is taking these changes on board and moving away from teaching traditional adversarial models towards teaching a more ADR skills based curriculum. There is a need to look more closely at whether the ‘interconnect’ between the teaching and practice of ADR is in fact happening in clinics; if so, how this teaching is happening; including an examination of clinical curricula. If it is established that this teaching is taking place, then research needs to be done to determine in what ways this teaching can be enhanced in the clinical context and whether it is contributing to students’ knowledge of non-adversarial approaches towards conflict resolution.

According to Sourdin, ‘changes to the law school education environment supporting ADR in a realistic, rather than marginal way should mean that there is a greater chance that law school education in Australia into the future will be both relevant and supportive of respectful dispute resolution in its traditional and alternative forms.’[9] Clinical scholars view clinical legal education as a method of learning and teaching law.[10] It includes teaching about skills as well as the broader legal system.[11] ADR has become a part of the legal system both in Australia and internationally. If clinical legal education is to teach students about the skills needed for practice then it follows that a focus on the teaching and learning of ADR skills is needed. Extensive research has shown that ADR has an important role in legal education. It places emphasis on a non-adversarial process of resolving conflict and provides lawyers with the knowledge and skills to engage with legal problems in a holistic manner. Law students engaged in clinical practice who understand and adopt these processes will become lawyers who focus first on client’s needs and interests when problem solving and resort to adversarial practice only when necessary. In this way, clinical legal education can ensure that law students are well prepared for their roles as ‘new lawyers’ in 21^st century legal practice.

My PhD research is focusing on whether ADR is being sufficiently taught to students in existing clinical legal education courses in Australia. My research explores whether and to what extent ADR is integrated into clinical legal education across Australia and how the teaching of ADR within clinics might be strengthened. Although this research is primarily undertaken at Australian clinics, it will assist with learning and teaching strategies in relation to clinical legal education as a whole and has relevance for all clinical legal education contexts. This research will assist with curriculum review in relation to clinical legal education in law schools.

[1] Tania Sourdin, Alternative Dispute Resolution  (LBC Thomsons, 5th ed, 2015) 13

[2] Ibid 12

[3] Ibid.

[4] Susskind R, Tomorrow’s Lawyers, 2013, Oxford University Press 135

[5] Ibid.

[6] Macfarlane, J The New Lawyer: How Settlement is Transforming the Practice of Law

(UBC Vancouver 2008 Macfarlane, 243

[7] Sourdin, above 1 5

[8] Ibid.

[9] Ibid.

[10] Evans, A, Cody, A, Copeland A, Giddings, J, Noone M.A & Rice S, Best Practices

Australian Clinical Legal Education Office of Teaching and Learning 2013 40

[11] Ibid 41

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.

The aim of my project is to identify hidden knowledge about methods that do and don’t work in capturing data from end users (clients) of dispute resolution processes. If we are serious about measuring the quality, effect, and experience of DR, then we need to gather data from the people for whom these services are provided. There are, however, many challenges to gathering that data, which I explored in the earlier stage of my research project at the 2016 Roundtable. Some of these challenges are related to the DR process itself – an often stressful experience about which clients may be (a) unwilling to speak about for research purposes or (b) unable to reflect upon dispassionately. There are barriers of ethics, reliance upon third parties to gather data, and then for service providers who gather data routinely, there are often limited resources to actually systematically analyse that data.

At the 2017 ADRRN Roundtable I reported the next stage of my project. Since the 2016 Roundtable I have engaged a research assistant to conduct a systematic literature review, reworked my proposed interview questions, and conducted some pilot interviews with DR researchers about their experiences gathering data from end users / clients. This post will focus upon what I learnt through the attempt to conduct a systematic literature review.

An account of a systematic literature review

I set out to gather relevant literature through a systematic approach that was designed to capture research conducted in Australia that involved the gathering of data from end users/ clients of DR processes. I enlisted the assistance of my law librarian and met with her and my research assistant to design the systematic literature review. A variety of databases and search terms were used. I wanted to have confidence that this would identify all of the relevant research reports that already exist. The main problem that I have faced is that the “systematic” review simply hasn’t identified all of the relevant literature. I am aware of some resources that I identified earlier in the project (through non-systematic searching) and also reported in the appendix of Tania Sourdin’s Alternative Dispute Resolution (Thomsen Reuters, 5th ed, 2016), which were not captured. My research assistant found that the search terms that we had planned often failed to limit results to material that met our criteria of Australian research in the DR area that included data gathered from clients / end users. He spent a lot of time wading through material that did not meet our research criteria. The result of the review was that 43 relevant reports of research were identified.

On reflection, there are a number of possible reasons why the “systematic” review conducted in accordance with the conventions of traditional legal academic research has not achieved the result that I hoped to achieve.

1. The database searches privileged peer reviewed journal articles. Not all DR research involving data from clients / end users is published in peer review journal articles. It is likely that most of the data gathered from DR clients / end users is not gathered or analysed by academics. Non-academics are unlikely to be motivated to publish in peer review journals, which mostly sit behind paywalls. Instead, open access self-publication, reports to funders, and internal reporting are likely to be frequent destinations for research. These kinds of publications were not captured by the systematic review.
2. There is possibly a wealth of client / end user data being collected, but much of it is either not analysed at all or only analysed for confidential purposes. Most service providers conduct research to capture feedback from their clients. These data may never be systematically analysed and even when analysis occurs, there may be no public output from the research. “In house” evaluations may be conducted for purposes of quality assurance, reflective practice, and performance management. These purposes are not enhanced by making research results available publicly, and commercial interests may be compromised by publishing client feedback data.
3. Even where DR research is published in peer review journals, there are few discipline specific publication destinations (particularly those considered by universities to be prestigious), resulting in a scattering of publications. It may be difficult to locate relevant literature because DR researchers publish across a broad spectrum of publications. Each journal has its own preferences in relation to reporting of research method, language and style. This could potentially have affected the ability of the systematic approach to capture all relevant literature.

The purpose of locating existing research reports was so that I could review the methods of recruitment of DR clients / end users and data capture that researchers have used. In the literature that I have identified so far, although relevant data were used as a foundation for the findings reported, the method of recruitment of participants and capturing of the data were not always explained. This possibly reflects the tradition in legal research of not reporting methods clearly, and the preferred style of some journals, which have strict word limits and may not value detailed accounts of research method. Often research reported in peer reviewed journal articles is reported in greater detail in non-peer reviewed reports. These were not always readily available when I tried to locate them.

Next steps

It is clear that there is a vast amount of grey literature available that is not necessarily captured through subscribed databases. My next steps will involve new search strategies that will capture a broader range of literature. My pilot interviews and interviews with DR researchers about their experiences capturing data from end users will also be an opportunity to identify research reports that may not have come to my attention through my searches.

My reflections on the data that remains hidden within organisations has caused me to wonder how those of us in academia can better engage with industry. DR service providers are often able to achieve very high response rates that are difficult for independent researchers to achieve. I believe that there are opportunities for academic researchers to build better working partnerships with industry, with all parties exploring the skills and resources that they can offer one another.

The experience has also highlighted a need for a comprehensive, well funded clearing house of DR research reports, which would provide a portal through which prior DR research can be more readily located. A significant initial investment would need to be followed by funding for ongoing maintenance, but there could be great benefits to clients, practitioners, organisations and researchers working the DR field. I am percolating ideas about how to pursue this idea and would welcome any offers of assistance.

This post written by Dr Bridgette Toy-Cronin is a blog version of paper delivered at the  ADR Research Network 6th Annual Roundtable, 4-5 December 2017. You can follow the forum on Twitter at #ADRRN17

Once a case is filed in court, settlement commonly occurs at the eleventh hour, just as the case is about to go to trial. By that time a lot of money, time, and energy has usually been spent by all involved. So how do we encourage parties to settle earlier? Or, if they can’t settle, how can we refine the trial issues so the case moves efficiently to trial?

To encourage settlement, courts have tried various different methods including compulsory mediation before filing, judge-led settlement conferences, and court annexed mediation. The New Zealand High Court has moved away from those initiatives, preferring to leave mediation and negotiation as a private matter between parties and focusing its resources on its main job, adjudication. When faced with the huge number of claims generated by the Canterbury Earthquakes though, it re-introduced an initiative it had briefly tried previously, an initial case management conference where the litigants themselves (whether or not they are represented) must attend. The idea is to get the litigants, lawyers, and the judge around a table for a meeting to engage with each other, face to face, and to articulate their objectives for the litigation and the main issues for trial. Nina Khouri whose paper on the Canterbury Earthquake List has been published in the Civil Justice Quarterly,[1] emphasises that this process sets the stage for both effective early dispute resolution and for efficient litigation. Early resolution or efficient litigation is a win-win for the courts and the litigants.

The process has a number of other potential benefits as well. For unrepresented litigants, an initial conference with the Judge is a chance to establish constructive communication with the opposing party and become oriented to the litigation process. For represented litigants, it is a chance to have direct interaction with the court and consider the goals for the litigation, the potential for achieving them, and the cost of doing so. (This is particularly important if the litigant’s lawyer has not performed this function – not all lawyers are created equal). For the court, it is an opportunity to communicate its expectations and the likely timeframes for the progress of litigation. It also provides a structured opportunity for the court to establish the expectation that parties will engage in settlement discussions and opens the door for that to happen. This is a more principled forum for doing this than the informal mechanisms some judges use of putting “heat” on litigants to settle as the litigation is progressing. While some “heat” might result in settlements, it can also leave litigants feeling confused and pressured, an issue I blogged about recently.

As with previous attempts at the rule, the requirement that litigants attend the case management conference has been dropped from the Canterbury Earthquake List. The major reason was the cost involved. These conferences take up a great deal of judicial time and the court did not consider it had the resources to continue staffing them. The other reason offered was that lawyers became familiar with the case management process and each other, and were “able to resolve many preliminary matters by consent on a routine basis” (Khouri at 346). Underlying these explanations may be deeper reasons for why these conferences have not been a “sticky” procedural rule. These reasons include:

• Judicial resistance to more onerous forms of managerial judging, particularly when there is significant ‘emotion work’ in these conferences and they lack the purity and therefore prestige of more traditional judicial work of hearing trials and writing judgments;
• Lawyers’ resistance to a form of conference that interrupts the traditional dynamic of the lawyer being the interface between the client and the court. These conferences may be difficult for a lawyer to manage, as the client participates directly, without the ability of the lawyer to filter or shield the client’s position.

I suspect that these are equally powerful reasons for the failure of the case management conference that includes litigants, than the ones stated. If the conferences do offer the benefits they promise, how can we overcome the cycle of introducing them and then either not using them or informally dropping the requirement for litigants to attend?

One method would be to do a Randomised Control Trial. The Access to Justice Lab at Harvard is a big proponent of this method and while I don’t think it would work in many legal settings this might just be an ideal situation. The idea is that when proceedings are filed they are randomised to either a traditional case management conference or one where litigants must attend. Data could then be collected about the progress of the proceeding. So, a timeline would be created for each case to see if it settled and if so when. If it went to trial, how long did it take to get to trial? To measure whether or not the type of case management conference made a difference to the refinement of trial issues, the trial length could be used as a proxy or the final pleadings could be used to compare the number of causes of action. This would obviously need to be in partnership with the courts who would collect the data and ensure the right type of case management conference was used in accordance with the randomisation. The big payoff would be some empirical data about whether the case management conference involving the litigants really has the benefits it intuitively suggests it may have.

[1] Khouri, N. C. (2017). Civil justice responses to natural disaster: New Zealand’s Christchurch High Court Earthquake List. Civil Justice Quarterly, 36 (3)

This post is written by Judith Rafferty (nee Herrmann), lecturer in the Conflict Management and Resolution program at James Cook University, nationally accredited mediator, trained conflict coach, and facilitator. Judith has a degree in Business Administration and Conflict and Dispute Resolution, and is a PhD candidate assessing the experiences of female survivors of conflict-related sexual violence with transitional justice processes. This blog entry is based on Judith’s TEDxTalk “When “Sorry” seems to be the hardest word – but I don’t care!”, which can be viewed here.

Some background to the research discussed in this blog post can be found in Judith’s journal article “Experiences, challenges, and lessons learned: interviewing Rwandan survivors of sexual violence”, which can be accessed here. Further publications discussing findings of the research are planned.

As a mediator and conflict coach I have observed many times how people in conflict feel wrongly treated by the other conflict party and request an apology. Only then, so they feel, is it possible to let go of the conflict and move on. Feeling the need for an apology makes people in conflict vulnerable and dependent on the other party, who might not be willing apologise. In this blog entry, I address the question of how people can become less vulnerable and more resilient when in conflict by forgiving those who they feel have wronged them, even if no apology is offered by the other side.

I was introduced to the concept of forgiveness while interviewing women who had survived sexual violence during the genocide in Rwanda in 1994 and who had experienced extraordinary wrongs by the hands of their perpetrators. Many of these women never received an apology from the people who had raped and tortured them, and yet, some of these women made the decision to forgive irrespective of any conciliatory actions of their perpetrators.

To give you a little bit of background, an estimated 250,000 – ½ Million women were raped during the genocide in Rwanda.  Many were raped and then killed, or died later from the consequences of the violence. The women who I interviewed as part of my PhD research on justice needs of survivors of sexual violence, had physically survived the violence and were able to share their stories with me. Many of the women had been raped by their own neighbours and have to live side by side with the perpetrators’ families today. At the same time, many of the women had lost their own families during the genocide. All the women who I spoke to had, following the genocide, participated in local justice processes in Rwanda (called “gacaca”). What women pointed out as particularly difficult during these justice processes was that most perpetrators denied everything of which they were accused. What would have helped, the women told me, was to hear a confession or even better, an apology. I wanted to know how the women coped with the fact that hardly anyone took responsibility and confessed and/or apologised to them. While discussing this question, a number of women raised the topic of forgiveness.

For example, a woman who had been raped and who had lost all her brothers and her father said:**

”There was a time when I was very angry. All the things that they had done to us were boiling inside us. But the anger is now gone and I can forgive them”.

She explained to me that she had actively made the decision to forgive, even though her perpetrators had neither confessed, nor apologised to her, and that this decision had helped her to find peace at heart and facilitate her recovery:

“Once I decided to forgive, I was healed”.

I thought that these words “I decided to forgive” sounded empowering and suggested that forgiveness is a choice that can be made without receiving anything in return. After hearing the women’s stories, I was intrigued to learn more about forgiveness, a concept that I, like many other people, found initially rather abstract. In the literature, I found some definitions of forgiveness that seemed to align with what the Rwandan women had talked about, and that brought the concept closer to me, including the one provided by Dr Fukofuka:

“Forgiveness involves conscious choice. When we forgive we decide not to think or talk about what others have done to hurt us. Forgiveness is not forgetting and it is not excusing; it is in fact the opposite of excusing. The mere fact that forgiveness is needed and granted indicates that what someone else did was wrong and inexcusable”.

Similarly, psychologist and researcher Frederic Luskin views forgiveness as a discrete process of letting go of anger and resentment, which may occur regardless of whether the wrongdoer has apologised or not.[1] Luskin found in his research that learning to forgive has psychological and physical benefits for people, since it helps to ‘hurt less, experience less anger, feel less stress and suffer less depression’.[2] Some critiques argue that forgiveness implies condoning or excusing wrongs, which may ultimately result in an omission of punishment of a wrongdoer.[3] Others have questioned the impact of forgiveness on the dignity and self-respect of those who are requested to or who offer to forgive.[4] However, I believe that this criticism mainly refers to situations where forgiveness is expected in return for an apology, and not where forgiveness constitutes a deliberate choice of the person harmed to let go of anger and resentment as described by Luskin. In fact, the process of forgiveness as defined above does not require any future interaction with the other party who has caused harm. Having said that, forgiveness can be part of a broader reconciliation process where one party apologises and the other one forgives. A few women did talk about how some of their perpetrators eventually apologised and how the women forgave them. However, the majority of the women has never received an apology until today, and yet, some of them “decided to forgive”.

Lessons learned

In summary, what we can learn from the women in Rwanda and what is supported by professionals who have researched forgiveness, are the following points:

• Forgiveness does not need to start with an apology, since you can decide to forgive unilaterally.
• You don’t have to tell the other party that you have forgiven them, and in some instances it might be safer not to do so.
• Even if you personally forgive someone who has harmed you, the person might still need to face consequences. One Rwandan woman explained: You forgive him but he still has to go to prison and pay for his crime.
• Forgiving can help to find peace of mind and support individual healing.
• Forgiveness doesn’t come naturally, but is difficult and takes time. It took the Rwandan women who “decided to forgive” many years. It seemed like the women went through a phase of intense anger first, and then reached a tipping point, where anger faded and having peace at heart by forgiving became more important than feeling anger.
• Finally, I learned that even survivors of genocide who have experienced unspeakable harm have found the strengths to forgive their perpetrators. Maybe this means that we all have the potential to forgive and the power to become more resilient.

** The original interviews were conducted in Kinyarwanda and were later transcribed and translated by a Kinyarwanda-English speaker. Challenges associated with researching in another language and how they were addressed in this research are further discussed in Judith Herrmann, “Experiences, Challenges, and Lessons Learned – Interviewing Rwandan Survivors of Sexual Violence,” Griffith Journal of Law & Human Dignity 5, no. 1 (2017))

[1] Frederic Luskin, “Nine Steps to Forgiveness,” Aging Today 25, no. 4 (2004),, 13.

[2] Ibid., 13.

[3] Phil Clark, The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda (Cambridge;New York: Cambridge University Press, 2010), 42-3.

[4] Audrey R. Chapman, “Perspectives on the Role of Forgiveness in the Human Rights Violations Hearings,” in Truth and Reconciliation in South Africa, ed. Hugo Van der Merwe and Audrey R. Chapman (Philadephia, Pennsylvania: University of Pennsylvania Press, 2008), 67.

REFERENCES

Chapman, Audrey R. “Perspectives on the Role of Forgiveness in the Human Rights Violations Hearings.” In Truth and Reconciliation in South Africa, edited by Hugo Van der Merwe and Audrey R. Chapman. Philadephia, Pennsylvania: University of Pennsylvania Press, 2008.

Clark, Phil. The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda. Cambridge;New York: Cambridge University Press, 2010.

Herrmann, Judith. “Experiences, Challenges, and Lessons Learned – Interviewing Rwandan Survivors of Sexual Violence.” Griffith Journal of Law & Human Dignity 5, no. 1 (2017): 165-88

Luskin, Frederic. “Nine Steps to Forgiveness.” Aging Today 25, no. 4 (2004): 13.