The July 2016 NSW Law Society Journal carries an interview by Julie McCrossin with the very accomplished Professor Larissa Behrendt, Chair of Indigenous Research at the UTS Jumbunna Indigenous House of Learning.

The article begins by reminding us that Behrendt is a storyteller and indeed she is. Talking about stories as a tool for justice, she comments that part of the significance of her work is to demonstrate that ‘there is such as important role for storytelling to play in law reform’.

To illustrate her theme, Behrendt draws on the recent request to the New South Wales Attorney General, by the Police Taskforce working on the Bowraville cases, to make an application to the Court of Appeal seeking to quash the acquittal and advocating a new trial.

Achieving this has been a long road and Behrendt (who worked with the Bowraville families at Jumbunna) credits the outcome as the triumph of storytelling over legal argument.

She says

‘There is such an important role for storytelling to play in law reform. As lawyers, we are so good at thinking about legal arguments, but there are so many things I have learnt from the Bowraville families and one of those things is that their stories are more powerful than my law’.

The story is compelling reading – not just for the insight into Behrendt’s work with indigenous families. It is a reminder to those of us practising and researching in the ADR field that storytelling offers power to persuade in circumstances where facts have been unsuccessful.

The early champions of ADR did us a great disservice when they promoted a benefits bundle of cheap and quick. We continue to suffer the consequences of this error of judgement. The proliferation of ADR services that are cheap and quick has left many disputes unresolved despite their advocates recording that they have been ‘settled’.

Reading the daily newspaper reports of the coronial inquest into the Lindt café siege should be all the proof we need that stories can achieve what facts cannot. All of us are stakeholders in this inquest. Indeed there are so many stakeholders that the inquest now has its own web address http://www.lindtinquest.justice.nsw.gov.au/.

One of the reasons the inquest has been continuing for such a long time (since it began in May 2015) is that, apart from seeking factual evidence about what happened, there is a lot of healing that can’t happen until we have exhausted the well of stories that need to be told. Initial attempts to make this an efficient process have given way to entreaties from the public and the families of the hostages and the hostages themselves. One of the most tragic and consistent themes from the stories of hostages is that they felt abandoned and believed that no-one was ever going to come to their rescue. If changes are to come to how police deal with hostage taking and hostage takers, it won’t be as a result of the forensic examination of the facts – it will be because of the extraordinary power of the hostages’ stories and the resulting damage to public confidence in the police to rescue us from harm. This will be the driver to force the police and government to do things differently and better.

Although stories like Behrendt’s are all around us, reminding us of the power of story-telling, sadly, the ADR processes that are happening in the shadow of the law have seemingly adopted the fact based approach that characterises litigation. A review of position papers commonly exchanged by lawyers prior to mediation makes it abundantly clear that much of the mediation world in the hands of lawyers is just litigation in another forum. It is disappointing to see the promise of mediation so consistently frustrated. Surely we recognise by now that while facts matter, ADR provides a golden opportunity to look past the objective data of the facts to the subjective experiences of the parties.

Story-telling courses and conferences abound in law schools in America and the United Kingdom and the ABA has a number of publications devoted to this field. It is hard to find any evidence of such programs in law schools in Australia. However there are numbers of programs and conferences in the social sciences arena. Resolution Institute (formerly LEADR) has been publicising a general conference being hosted at Melbourne University in November – http://www.thestoryconference.com.au/program/

Perhaps the next step is for law schools to take a lead in influencing professional practice by partnering with other faculties (such as the program sponsored by the RMIT University School of Media and Communication) which have experience in delivering storytelling skills via experiential learning. It is time to ensure that this powerful tool of persuasion is embedded in ADR best practice.

A recent ABC radio program titled Robot lawyers could make time-consuming, expensive court conflict thing of the past outlined a brave new world where artificial intelligence technologies can ‘mediate everything’ including divorce and child custody. A Dutch program has been introduced in Canada to resolve debt and tenancy issues, and in the Netherlands it is used to sort out family law issues, including child support.  Where the matter was sensitive, it could be referred to a ‘trusted advisor’ who would act as an online mediator.

This program, and other online methods of dispute resolution, are touted as empowering clients and promoting access to justice for those who cannot afford to litigate and who don’t qualify for legal aid, and thus ultimately enhancing democracy.

The recent KPMG report for the Commonwealth Attorney General Future Focus of the Family Services  also explores the benefits of online technologies for resolving family disputes. Telephone and online dispute resolution of family disputes are already firmly embedded in family services provided to rural and remote clients, and the report notes that in an increasingly digital world, ‘agencies and their providers can adapt and use technology to engage with citizens in shifting business models from reactive, to proactive or customer driven’.  Digital or online services may enhance accessibility for people in remote locations, but also benefit shift workers, at home parents, those at risk of violence and people with disabilities, the report argues. There is no doubt there is enormous potential here for greater access and immediacy, and for reducing costs for the community and disputants, and even for promoting safety, but there are also risks that need to be carefully evaluated.

The issues relating to online dispute resolution are not dissimilar to those associated with dispute resolution generally, although the online context may exacerbate or minimize some of these risks. The National Alternative Dispute Resolution Advisory Council considered some of these in 2002 in its Dispute Resolution and Information Technology Principles for Good Practice. Using the framework often used for evaluating dispute resolution it discussed some of the risks:

• Accessibility: whilst access will be enhanced for some, some who are vulnerable may not be able to access such resources or the tools to access them, especially those with low literacy, older people, from some cultural communities. The access of those in rural and remote areas will depend on the reliability of high bandwidth telecommunications.

• Fairness: NADRAC notes ‘Information technology may neutralise some sources of power through removing some of the dynamic associated with face to face communication.’ Some parties may be empowered, but in other situations power imbalance may be created or exacerbated. Those unfamiliar with the technology may be pressured into decisions. Men, who often communicate for factual information, may be favoured over women whose communication preference is generally relational, as this may not be well supported by online technologies. Where parties are remotely located one or both may ‘more effectively mask their feelings, delay responses or manipulate the environment’, and the mediator not be able to respond appropriately or even handedly if they are not able to read the parties as effectively as if they were in the same room. It may be more difficult for the mediator to establish impartiality and trust in an online context.

• Effectiveness: this begs the question of effectiveness for whom? From a party perspective, online DR may be quick, accessible and cost effective, and ‘cheaper’ justice is also a positive community outcome. If self determination is the key objective of mediation, then online communication may sometimes facilitate this (it may assist parties to slow down, reflect and focus on issues rather than personalities, and feel safer) or obstruct it (because nuance is lost, complex emotions not conveyed, or communication is stilted or constrained, and a sense of finality and formality absent). If the full communication and closure is not achieved, then outcomes may also be compromised.

So whilst there are benefits to online dispute resolution, and even robotic determination of disputes, we must ultimately consider whether these processes are likely to achieve party self determination. Self determination assumes the parties are autonomous and rational decision makers. Participation is voluntary and direct, and the parties control the content and outcomes where they make voluntary, consensual and informed decisions. The degree of voluntariness will vary depending on the legal frameworks governing the dispute. Informed consent will be achieved if online dispute resolvers, including robotic ones, and service providers can ensure:

• parties are educated about the nature, purpose and processes of the dispute resolution and any factors that will affect the process;
• that parties understanding this information; and
• that the dispute resolver continues to monitor party consent, especially if either is unrepresented, or if their capacity or autonomy is compromised or influenced in some way, or where their participation may not be voluntary.

If these standards are able to be achieved, then online dispute resolution may be able to achieve it’s participatory, cost saving and self determinative goals.

This post has been contributed by Dr Olivia Rundle and Dr Brendan Gogarty, of the Faculty of Law at the University of Tasmania.

Dr Olivia Rundle made a presentation at the Australasian Legal Teachers Association Conference 2016 about a Teaching Development Grant project that she is working on together with Dr Brendan Gogarty, and Alex McKenzie, a Tasmanian legal practitioner. Our project concerns the meaning of Australian Law Threshold Learning Outcome (TLO) 5(b), which states that “graduates of the Bachelor of Laws will be able to collaborate effectively.” By contrast to Australia, there are no standard learning outcomes prescribed in New Zealand, and the Faculty of Law at the Victoria University of Wellington (where the conference was held) states that its graduates “should have an understanding of the need for collaborative and cooperative behaviour in professional life.” Framing the graduate attribute in this way does not require the VUW Faculty of Law to assess students’ ability to collaborate, merely their awareness that it is needed in practice.

We want to unpack what TLO 5(b) actually means in the context of legal practice. Our project will inform our practice-centric teaching programme at the University of Tasmania.

Relevance to Dispute Resolution Research

The ability to collaborate effectively – or “work well with others” – is a foundational skill that is applied in dispute resolution contexts. Lawyers frequently engage in activities that contribute to the resolution of their clients’ disputes in the ordinary course of legal practice. Dispute resolution research will benefit from an improved understanding of the way that lawyers collaborate in general legal practice.

Do lawyers collaborate?

One of the reasons the TLOs have not been adopted as pre-admission requirements by Law Admission Authorities is that some senior members of the legal profession expressed concerned that many successful lawyers would not meet the threshold standards. In particular, the ability to “collaborate effectively” was singled out as something that many exceptional lawyers “do not, cannot or are not inclined to” do (Justice Slattery quoted in Steel, Huggins and Laurens). The immediate response of many practitioners we’ve talked to so far has been: “lawyers don’t collaborate”.  That seems to be a relatively widely held view (although not universal).

We are confident that the ability to collaborate effectively is an inherent requirement that all lawyers need, despite such claims from within the profession. Forms of direct and indirect collaboration in legal practice include: intra-firm collaboration, between lawyers (especially within the hierarchical nature of firm structures ) as well as between lawyers and other professionals working in the firm (i.e. conveyancers and administrative staff); inter-firm collaboration; between lawyers on either side of a dispute; intra-professional (solicitor to barrister); inter-professional (between lawyers and officers of the court, experts, medical professionals, accountants etc); and of course with the client.

Particular influences on collaboration in legal practice

There are some features of legal practice that have an impact upon the need for lawyers to collaborate effectively. These include joint and several responsibility and the obligation to provide legal representation within firms. Other features of legal practice can have a negative impact upon lawyers’ collaborative behaviour. They include time billing and targets (an individual activity that works as a disincentive to working with others within a firm) and competing responsibilities to the client, administration of justice and business partners/supervisors (these tensions push and pull incentives to collaborate).

Our teaching development project

Our teaching development grant is enabling us to investigate, evaluate, create and disseminate an evidence base and resources that support students to become competent in engaging with the unique challenges of working in teams within a firm environment. Our project involves the following activities:

1. Literature reviews of teaching standards, collaboration in legal practice;
2. Audit of collaborative learning activities, assessment tasks and instruction;
3. Liaison with students, legal professionals and teaching experts.

Part 3 will include a focus group with Tasmanian legal practitioners where we will ask them to discuss questions that will reveal how they collaborate with other people in the course of legal practice within firms, with clients, with other lawyers and legal institutions, and with non-legal professionals.

I recently attended the Australasian Law Teacher’s Association Conference (ALTA) hosted by the Victoria University of Wellington, in New Zealand. This is the first of a series of posts about dispute resolution research that was presented at the conference.

Dr Grant Morris

Dr Grant Morris is a Senior Lecturer at the Victoria University of Wellington’s School of Law. Grant’s dispute resolution related
research is in the negotiation and mediation spheres, and is no doubt influenced by his interests in legal history, education and law and literature. In 2013 he published an article “Towards a history of mediation in New Zealand’s legal system” (2013) 24 Australasian Dispute Resolution Journal pp 86-101.

The research project

The work that Grant presented at the ALTA conference is an empirical study jointly funded by LEADR and VUW. The focus is commercial mediation. Grant chose this area of mediation because it is the only truly private mediation market in New Zealand. Other markets (such as family and employment law mediation) are controlled by the state through statutory or funding regimes. That control influences whether and how mediators, lawyers and parties engage with the process and one another.

The question that inspired part two of Grant’s four stage empirical study is whether commercial mediators are right when they perceive lawyers to be a barrier to mediation. Grant took this anecdote and his research tested it with empirical evidence. The project is being rolled out in four stages, gathering data from mediators, lawyers, parties (actual and potential) and the courts. Grant presented his findings from his survey and interviews of commercial mediators at the 2015 ‘kon gres in Auckland and presented his report to the Wellington Chapter of the Resolution Institute.

Findings from commercial lawyers

Grant’s ALTA presentation focused upon the findings from his surveys and follow up interviews of commercial lawyers in New Zealand. The report from this stage of the study was published in June 2016. He summarised his conclusions:

• Commercial lawyers know about mediation;
• Commercial lawyers are generally supportive of mediation, but on their own terms;
• Commercial lawyers do not support the idea of mandatory mediation (New Zealand courts do not have power to order litigating parties to attend mediation in commercial matters);
• Commercial lawyers have an overwhelming belief that they are contributing positively to the process and do not undermine mediation;
• Clients are believed to have limited knowledge about mediation and to rely upon their lawyers’ recommendations;
• Commercial lawyers have a gatekeeper role in relation to commercial mediation;
• The main reason for commercial lawyers recommending mediation is that they believe it is cheaper than litigation;
• Commercial lawyers have a preference for legally trained mediators with experience and reputation as lawyers (they should understand basic legal principles and how commerce works);
• Commercial lawyers report high mediation settlement rates and high overall quality of mediators; and
• Commercial lawyers are generally happy with the standard of commercial mediators in New Zealand.

By comparison, the mediators who were interviewed for the study had different views of lawyers depending upon whether they were “in demand” or struggling to find commercial mediation work. In demand mediators were generally happy with the market, whereas those struggling to secure work were unhappy.

The next stage of the research project

Part 3 of the project will involve a survey of users and potential users. The data from lawyers reveals the potential for better party knowledge about commercial mediation. At the moment, it appears that many parties only know what their lawyer has told them about commercial mediation. The user voice is of obvious significance in building a picture of the commercial mediation market.

Grant was asked how he will be recruiting clients and potential clients to participate in part 3 of his project. Recruitment of users to empirical dispute resolution research is often challenging. Grant is in the process of deciding upon the best way to engage users and plans to focus first on the in house context. In house lawyers are both lawyers and users, so this may be a useful first step in obtaining user views.

Grant will be making another presentation in relation to his project at the DR Research Forum at the National Mediation Conference on the Gold Coast on Thursday 15th September 2016.

Susan Armstrong recently posted about the value of research in family dispute resolution. She pointed out the benefits of research led practice.  I also advocate this approach but am researching the context of conflict in strata title (multi-owned housing) and the best ways to deal with disputes where parties live in close proximity and share assets. My research focusses particularly on the development growth in apartment towers, medium density townhouses and master planned estates.  Master planned estates often include shared assets such as a country club with pool and tennis courts.  These developments are growing in inner suburbs  in infill sites and in the outer suburbs where there may be large amounts of detached housing surrounded by medium density townhouses.

Conflict arising in apartment buildings, medium-density housing and master planned estates is an important issue as strata title developments become more prevalent in Australia. The research is also important as conflict can impact negatively on the experience of residents in these strata developments. In Victoria, the Owners Corporations Act 2006 (Vic) (‘OC Act’) provides for a dispute resolution scheme for conflicts arising in strata developments. A recent co-written article will appear soon in the Adelaide Law Review describing our research into dispute resolution under the OC Act, and in particular into the effectiveness of the model rules for dispute resolution provided in the associated regulations. The research, which was conducted in Victoria in 2011, gathered data from a range of key stakeholders in owners corporations, including 34 strata managers of owners corporations. This article reports on the range of conflicts experienced by the strata managers who participated in the study. Analysis of the data provided by the strata managers shows that difficulties with conflict and the model rules for dispute resolution under the OC Act were most evident in small and large developments. The participants most satisfied with the model rules were managers in medium-sized owners corporations. Whilst a majority of managers used the model rules, over a third used their own informal rules. These findings lead us to argue that there is a need for differentiated rules for dispute resolution that are dependent upon the size of the development. Additionally, we suggest that further research is needed into the informal rules applied by a significant proportion of managers to ascertain their effectiveness and to provide owners corporations with added choice in dispute resolution.

Given a recent review into the OC Act in Victoria we hope our research will asset in reform of the legislation. I am presenting on an associated issue at the Mediation Conference in September where I will explore what further research in this area might look like to engage OC residents in better dispute resolution design.

I have this week been attending the biannual Australian Institute of Family Studies (AIFS) Conference in Melbourne. The focus of the conference is on translating research evidence into policy and practice change. It has made me reflect on existing research bases about dispute resolution in the area with which I am most familiar: family dispute resolution (FDR) in the family law sector, and whether we sufficiently adopt an evidence based and effective approach in designing, implementing and translating research about dispute resolution .

We actually have a lot of evidence about family dispute resolution: much of it has been gathered by AIFS as part its evaluation of the impact of family law reforms made in 2006, and subsequent evaluations of the family law system.  Non-adversarial dispute resolution is now deeply embedded in the family legal system as the primary way to resolve differences following separation. AIFS research has demonstrated a lot of things about resolving disputes following separation including:

• Most (80% +) people who separate work out problems themselves, without much assistance from professionals or services;
• Those people who need assistance from professionals often have a history of domestic violence (70% +), as well as complex profiles which include the co-occurrence of mental health problems, disability, substance abuse and socio economic disadvantage;
• Satisfaction levels of people who use different dispute resolution mechanisms (lawyer negotiation, court, mediation) is often higher for mediation / family dispute resolution;
• Programs like Coordinated Family Dispute Resolution (CFDR), developed by Women’s Legal Services Qld and piloted in 5 locations across Australia, to support people with histories of domestic violence safely participate in FDR can achieve safer outcomes for parties, and facilitate participation and ultimately self determination by parties. The AIFS evaluation concluded that this program was at the ‘cutting edge’ of family law practice, not only because of it’s innovative pre-mediation processes to inform and support parties to effectively and safely participate in FDR, but because of the multi-disciplinary, multi-agency & professional collaborative case management of the CFDR cases.

However, the good results from this pilot did not mean CFDR was rolled out across the family law sector, despite that some women and children continue to vulnerable to the significant effects of violence following separation, and the failings of existing dispute resolution processes to address this need.

It seems to me that even where we have good evidence, we need to have better strategies as researchers to ensure that good ideas are more often translated into policy and practice.  The AIFS conference has demonstrated to me that advocacy and persuasive arguments are not enough, but that DR professionals (many of us lawyers) need to think strategically about how to provide evidence in a digestable and compelling form so that its chances of being adopted by policy and decision makers are enhanced. As DR researchers we need to think about:

• Embedding research in every new DR initiative we adopt or are involved in, so that from day one, we are collecting appropriate evidence of outcomes and what works and doesn’t and why;
• Be more outcomes focused – but think very carefully about what constitutes outcomes, and how do we gather data of the more subtle outcomes;
• Identify the exiting relevant research and data, preferably locating systematic reviews of such evidence which synthesise the learnings and outcomes where this exists. This is not usual practice with DR research – so how do we initiate systematic reviews, or at least shape our existing research to ensure it might inform such reviews?
• Engage with the evaluation and implementation science that charts how best to translate good ideas into practice and how to measure what works and what doesn’t;
• Consider the implications of research findings for practice, and consider how we might translate findings into policy-usable evidence briefs, rather than long reports;
• Ensure we engage and collaborate with researchers from other disciplines, and with each other, and appreciate the power and insights that come from the collective and from  thinking different to our own.

Obviously the translation of good ideas is not all about the evidence. It is often serendipity, personality and politics that play just as significant a role. But unless we are ready with the evidence in ways policy makers can grasp, our good ideas may not make the difference they ought to.

About Alysoun

I am an off-campus PhD candidate at the University of Newcastle – having just moved from Monash University.  I am also a Director and Fellow of Resolution Institute, and was the national vice-president of IAMA before its integration with LEADR.  I am an ADR practitioner and trainer, especially mediation training, and a Senior Mediator Member of the ACT Civil and Administrative Tribunal (having designed the mediation program that ACAT uses), and am on the mediator panels for the ACT Supreme Court and for the Arts Law Centre of Australia.  I am also a member of the ADR Advisory Council (ADRAC), of the Law and Society Association (USA), and of the American Bar Association Task Force on Research into Mediator Techniques.  Prior to entering the world of ADR, I worked in various public service positions, including as a senior policy advisor on illicit drugs, advising the then ACT Chief Minister; in that capacity, I conducted an extensive international consultation process that informed the ACT Government’s proposal for a trial of medically prescribed heroin.  I live on a mountain property in a small, remote community in NSW, where I am the Training Officer for, and an active member of, the local fire brigade.  My son lives and works in Seattle (USA), and I have immediate family in Sydney, and in Switzerland. 

Thesis Research Project

My research topic arose from my mediation practice and my training of mediators: what is it that makes some mediators so much better, or more effective, than others?  I am concentrating my research on review and analysis of existing empirical studies of mediation and of mediator techniques, and have been very fortunate to have access to a compilation of almost 90 reports from such studies that was pulled together by the ABA Task Force on Research into Mediator Techniques.   I am constantly updating and rewriting my research questions, but, in essence, they are:

1. What is known about mediator influence over participant behaviour and participant perceptions, including perceptions of mediation effectiveness?

2. What is known about what mediators actually do in mediation that is so influential?

3. How can mediator behaviour and levels of influence be effectively measured and analysed?

4. What differences might it make to existing theories about mediation, existing mediator practices, and existing mediator training regimes if specific mediator behaviours (rather than models of practice, or styles and approaches) were found to be key predictors of mediation effectiveness?

What is most exciting for me about my research?

I am thoroughly enjoying learning about mediation research, meeting ADR researchers (in Australia and overseas), and gaining insight into, and understanding about, the characteristics of very effective mediators. I am currently working with a US academic on a report to be presented by the ABA Task Force, and that is certainly an exciting project.  Last year, I attended a compulsory seminar on the philosophy of law and that activated every curiosity neuron in my brain, which is always an exciting event; however, the most exciting aspect of my research has been learning about the unfamiliar world of academic research: its social norms, its language and its rules.  It has been something of a cross-cultural experience for me. 

What challenges have I experienced with my research?

It seems to me that everything I have done around this research project has been a challenge.  For example, I have had to learn how to turn ideas into formal research questions; how to write in an academic style; how to consistently apply strict citation styles.  I have also had to master some of the infinite capacities of the internet so my off-campus attendance is neither isolating nor an obstacle.
While learning how to be an academic researcher has been exciting for me, it has also been a challenge.  Although I have conducted many graduate and post-graduate ADR courses at universities, these have always been in the form of 3 or 5 day intensives, rather than extended, regular university attendance.   Becoming an academic researcher is quite different from parachuting in for an intensive and then jumping back out.

Where would I like to go after I finish my research project?

Once this project is completed, I would like to progress to empirical study of mediator behaviour to identify, or confirm, what very good mediators actually do that makes them so much better.  Some commentators have referred to the ‘black box’ of mediation*, and I would like to see that dark, mysterious container opened so researchers can properly study what actually happens in a mediation, and mediators can use accessible research findings to improve their practice techniques.
On the other hand, my family owns a very small, mediaeval house in a perched village in Provence (built in around 1100AD), and I would really enjoy some time on its balcony, listening to the bees in the lavender, the church bells in the distance, and the rhythms of local greetings.   

* For example, see: L. B. Bingham, ‘Transformative Mediation at the United States Postal Service’ (2012) 5 Negotiation and Conflict Management Research, p 363; L. Charkoudian, ‘Just My Style: The Practical, Ethical, and Empirical Dangers of the Lack of Consensus about Definitions of Mediation Styles’ (2012) 5 Negotiation and Conflict Management Research, pp 371 and 380; J. A. Wall, Jr, and S. Chan-Serafin, ‘Processes in Civil Case Mediations’ (2009) 26 Conflict Resolution Quarterly, p 262. 

We’ve received the following Call for Abstracts  from the ASIL Dispute Resolution Interest Group about the Yale Law School Center for the Study of Private Law Junior Scholars Workshop:

The American Society of International Law’s Dispute Resolution Interest Group and Yale Law School’s Center for the Study of Private Law are hosting a workshop for junior scholars. The workshop will be a safe space in which aspiring academics, post-docs, doctoral students, fellows, VAPs, other non-tenure-track academics, and pre-tenure professors can get feedback through group discussion on academic works in progress in international dispute resolution. Authors will not give formal presentations of their work. Rather, each accepted paper will be assigned a discussant, who will briefly introduce the paper, provide feedback to the author, and lead a discussion among participants. This format permits lively discussion of ideas and writings that may be inchoate or not yet fully developed. Discussants may include other junior academics at Yale and other authors participating in the workshop.

The workshop will be held at Yale Law School on the afternoon of Friday, October 28, 2016. All participants will be expected to attend the entire workshop and to be prepared to comment on the other papers, up to a maximum of three. We are unfortunately unable to fund travel but will host a dinner in the evening.

500-700 word abstracts may be submitted by midnight Eastern Time, July 15, 2016 to this folder: https://www.dropbox.com/request/weafBJW4I7tI2TEDu4Af. (A Dropbox account is not necessary to submit documents.) Any topic related to international dispute resolution will be considered. Submissions must be works in progress and should not have been submitted for publication. Abstracts will be reviewed by ASIL Dispute Resolution Interest Group Co-chairs Perry Bechky and Christina Hioureas together with Sadie Blanchard of the Center for the Study of Private Law.

The authors whose proposals are chosen will be informed by August 15th, 2016. All participants must submit a substantial work in progress by October 7, 2016, which will be circulated in advance of the workshop to registered attendees. It is expected that this work will consist of a working draft paper at least 20 pages long. Participants whose drafts are longer than 30 pages will be asked to focus the attention of the discussants and other participants on key excerpts.

Please direct any questions to sadie.blanchard@yale.edu.

Apart from obvious issues such as language and those associated with being present in an unfamiliar territory, a conflict resolution practitioner must be sensitive to cultural issues relating to the ‘way of doing things around here’ and the extent to which the conflict is embedded in cultural ways of knowing.

A conflict resolution practitioner needs to be ‘culturally aware’ of, and ‘culturally sensitive’ to, the issues involved in the conflict including transportability and applicability of culturally distinct models of conflict resolution to a culturally constructed conflict. An awareness of, and sensitivity to, cultural issues would make the conflict resolution practitioner culturally competent, but the conflict resolution practitioner must also be culturally fluent.

Cultural fluency extends beyond both cultural sensitivity and awareness. It requires an awareness of one’s own cultural biases, assumptions, prejudices and stereotypes, and how those might impact on the conflict resolution process. Practitioners intervening in conflict situations must be aware of how their motives, actions, and expectations are culturally engendered and affect the conflict resolution process and the outcome.

Intervention must also include consideration of the ways in which culture becomes embedded in conflict and is politicised. The ability of the conflict resolution practitioner to use various techniques of intervention and to be creative is crucial to the resolution of cross-cultural conflicts. Intervening in cross-cultural conflict situations could be challenging because of the diversity and complexity of issues, but it is clear that intervention requires that conflict resolution practitioners be flexible, creative and fluent.

“Construcción del puente sobre el río Almonte” By Yeza (Own work) [Public domain], via Wikimedia Commons

You are welcome to share your experience as a third party in a conflict/dispute involving cultural issues including approach, skills and lessons learned.

I’ve just spent the past 4 days in a whirlwind of ideas and conversations at the American Law and Society Association annual meeting in New Orleans. (You can follow the fascinating Twitter feed for the conference Here.) Three ADR Research Network members presented papers at the conference: Professor Rachael Field from Bond University, Professor Tania Sourdin, Dean of Newcastle Law School and me. Both Tania and I tweeted prolifically at the conference.

There were lots of wonderful papers about dispute resolution, judging, case management and therapeutic and procedural justice. The conference often had 12 parallel sessions running, with papers each plus discussants, from 8.15am-5pm for 4 days straight. I have a strong case of ideas-overload right now.

I think what I love the most about huge conferences like this one are the conversations that take place outside and around the formal paper sessions. It is there we are able to make real connections with researchers in other jurisdictions and think about how developments in other legal systems might reveal truths about our own legal system.

Over a very nice glass of vinho verde, I was having such a conversation with Dr Bridgette Toy-Cronin, Director of the Legal Issues Centre at the University of Otago in New Zealand and Dr Karni Perlman of Bar Ilan University on Israel. We were comparing civil justice reforms in our countries and methods used by governments  to streamline litigation and increase settlements before trial. Sometimes parliaments and courts attempt to de-legalise disputes by banning lawyers or forcing parties to appear unrepresented in litigation or other dispute resolution procedures. In Israel, and New Zealand recent legislation has required family law disputants to attend informal dispute resolution processes or litigation without their lawyers.

Both of these developments remind me of how, in Australia between 2006 and 2009, just after implementation of the major family law reforms making family dispute resolution (FDR) compulsory in many family law childrens’ disputes, guidelines banned lawyers from attending FDR seasons at Family Relationship Centres. Those guidelines very revised in 2009 and lawyers are now involved productively and cooperatively in FDR in a number of cases, including in special FDR process set up to support victims of family violence.

To my way of thinking, ousting lawyers from legal processes and discouraging legal representation is a very crude way of attempting to streamline dispute resolution procedures. Such measures are based upon the false assumption that the source of adversarialism is lawyers. Therefore, it is reasoned, having clients go ‘naked’ without their legal counsel, will facilitate a collaborative settlement. 

This assumption ignores several truths that are well-established by research. One ignored truth is that a key role that lawyers play in civil disputes is to manage the expectations of their clients. Lawyers often assist with reaching a settlement by encouraging their clients to accept an outcome that is closer to what the other side may see as reasonable, thus bringing the parties closer together. A second ignored truth is that legal advice plays an important protective role in ensuring that clients, in the absence of their lawyers, don’t bargain away rights that they will need. Legal advice helps prevent unjust settlements, especially where there is an imbalance of negotiating power. Forcing clients to negotiate or litigate without their lawyers may unreasonably disadvantage vulnerable parties.Edit

We’ll continue our conversation about the implications of cross-national civil justice reform that ejects lawyers from dispute resolution processes.  

  We hope to use the experiences of other jurisdictions to inform development of civil justice policy. Without the chance to meet and chat about our own work at the conference, we would never have made the connection between justice reforms in these three diverse jurisdictions. 

Can you help? Are there any examples of similar reforms in your jurisdiction or area of practice that reject the involvement of lawyers? Please post a comment here or email me.