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.

About Rebecca

Rebecca Edwards is currently completing her PhD at La Trobe Law School, Bendigo. Rebecca has been employed on a sessional basis in the School of Law for the last 9 years teaching a large number and broad range of subjects including Dispute Resolution. Prior to this work, Rebecca practiced as a lawyer for over 10 years in rural and regional Australia, working predominantly for legal aid clients (both as a private solicitor and as an employee of Victoria Legal Aid), as well as a two year period working of the Kimberly Land Council as a Native Title Lawyer in Broome, WA, and a 3 month stretch as a volunteer legal analyst at the United Nations Criminal Tribunal for Rwanda based in Arusha, Tanzania. Rebecca now balances work and study with family life with her two primary school aged children, a number of board roles and the running of a small farm where the family raise small-scale free-range, grass-fed, ethically raised pork, lamb and beef and duck eggs.

Rebecca’s research

Consistent with its philosophy to support unrepresented litigants, in June 2009 the Victorian Civil and Administrative Tribunal (“VCAT”) implemented a pilot strategy in mandated mediations involving an unrepresented litigant and a mediator who is not a Tribunal member (known as a panel mediator). The strategy was to provide parties in these mediations with a cooling off period of two business days, enabling them to withdraw from a meditated agreement without penalty.

Through the use of electronic surveys of mediators and telephone interviews with disputants, Rebecca is attempting to discover whether VCAT’s innovation actually does provide support to unrepresented litigants. Her two main research questions are:

• whether the unusual and innovative provision of a cooling off period following a mediation is utilised by unrepresented disputants (i.e. do disputants actually seek advice about their mediated agreement subsequent to the mediation?)
• whether the provision of a cooling off period following a mediation empowers unrepresented disputants (i.e. regardless of whether disputants speak to anyone about the mediated outcome, do they feel better about the outcome knowing that they can withdraw from it without penalty for a certain period of time)

The research is currently at the stage of analysing the data with final write up expected later this year.

 Papers and presentations

Rebecca first presented a draft paper on her research at the ADR roundtable in Sydney in September 2016. A more up-to-date paper was presented at the Asia Pacific Mediation Forum’s Conference, in Lombok, Indonesia in February 2016. With luck and hard work, a solid draft of the thesis is expected to be completed by the end of this year.

UNSW Law is seeking expressions of interest from world leading researchers (Professors and Associate Professors) in a range of areas, including civil dispute resolution.

For full details, see:

http://www.law.unsw.edu.au/news/2016/05/unsw-law-seeks-expressions-interest-leading-researchers-private-law-corporate-and

The position description specifies a broad range of areas:

• Private law, in particular, tort law, contract law, equity, remedies and civil dispute resolution; and
• Corporate and commercial law.

I am happy to serve as a preliminary point of contact for readers of the blog.

Network member Becky Batagol recently wrote about her experience working as a research consultant for the Royal Commission into Family Violence. She makes some very interesting observations about the nature of the inquiry and the collaborative and constructive nature of the process.

You can read Becky’s reflections on the Monash University website.

Thanks for sharing your reflections Becky!

More about the outcomes of the inquiry and how dispute resolution was relevant was posted here earlier by Rachael Field.

Thank you to all the Dispute Resolution scholars who have expressed interest in participating in our Round Table in December 2016.

Our Call for Proposals closes today.

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

If you want to join us in Hobart in December, you need to express interest in participation by today’s deadline! Email your EOI to adrresearchnetwork@gmail.com

Proposals will be assessed over the next few weeks and everyone who expressed interest in the Round Table will receive a reply by the end of June.

Paper presenters can expect to be assigned at least one chair/commentary responsibility.

By Hullwarren (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0) or GFDL (http://www.gnu.org/copyleft/fdl.html)%5D, via Wikimedia Commons

This post has been contributed by:

• Tamana Daqiq  BA.Psych, LLB, Masters in Islamic Studies, and
• Dr Helen McCue AM B.Ed, MHPEd, PhD (UNSW)

Both Tamana and Helen are Research Officers at the Law School of the University of Sydney.

Case Scenario

Mariam and her husband Abdul live in Australia and have been married for 13 years. They have three children aged between 6 and 12 years. In recent years there has been an increase in the conflict between Mariam and Abdul. Mariam is unhappy and exhausted from the conflict. She no longer wants to remain married to Abdul.  After speaking to Abdul she sees a lawyer and files an Application for Divorce in the Australian Family Court. Mariam is a practising Muslim and seeks the advice of her local Imam to obtain an Islamic divorce and resolve the issue of custody of the children.

 This scenario illustrates some of the issues that Muslim women face when they are seeking a divorce in Australia and demonstrates some aspects of the relationship between Australian family law and Islamic family law in the case of a divorce.

The Research Project

The Australian Family Law and Islamic Dispute Resolution Processes Project,  is a multi-method policy-based research project. The project, funded by the Australian Research Council and conducted by researchers from the Law Schools of Sydney University and Melbourne University, brings together expertise in family law and law and religion to examine the issue of how Australian family law should respond to Islamic community-based dispute resolution processes in relation to family law disputes.

Research Question

The project examines the question of how the Australia’s family law system can best respond to these Islamic community processes, and how, as in the case of Mariam in the above scenario, this response can support Muslim women. The project seeks to provide reliable empirical evidence for evaluating the responses to these processes and how these might support Muslim women. At its completion the project will propose, based on rigorous empirical and normative research, the best response from a liberal legal system such as Australia’s to these Islamic community processes.

Existing Literature

The literature informs us that Australia is home to a variety of cultural and religious norms, laws, practices and communities which for the Muslim community includes often informal and unenforceable community-based dispute resolution processes for dealing with family conflict. In recent years government initiatives have emerged that are designed to enhance access to the legal system’s services for people from culturally and linguistically diverse backgrounds. Despite this, little is presently known about the experiences of Muslim women who use community processes to resolve family disputes, or about how the Australian family law system might go about responding to these processes in a way that supports Muslim women. While there is a growing scholarship on the issue outside Australia, scholarship on Islamic decision-makers within Australia is limited. To date, the only relevant empirical research in Australia which documents how Australian Muslims deal with family disputes can be found in a ground breaking book by Dr Ghena Krayem titled Islamic Family Law in Australia: To Recognise or Not To Recognise published in 2014.

Research Method

This research project, Australian Family Law and Islamic Dispute Resolution Processes Project,   will be conducted in two stages. The first stage, led by Professor Helen Rhoades and Dr Ghena Krayem, involves interviews with relevant stakeholders including individual Muslim men and women and community leaders, Imams, community workers and other services providers from Islamic organisations as well as family lawyers and family dispute resolution practitioners.  The second stage, led by Professor Carolyn Evans and Dr Farrah Ahmed, will involve an analysis of the Stage 1 data to engage in a normative examination of how Australian family law should respond to Islamic community-based dispute resolution processes in relation to family law disputes.  The research results will be available through our web page.

About Resolution Resources

Emma-May Litchfield and Danielle Hutchinson are the co-founders and directors of the consulting firm Resolution Resources Australia, who provide dispute resolution services and solutions nationally and internationally. Together they work as dispute resolution advisors, providers and educators.

Resolution Resources provides a range of services in dispute resolution and conflict management, including:

• Mediation
• Facilitation
• Conflict Coaching
• Professional Development
• Research and Development of Dispute Systems
• Conflict Auditing
• Evidence-based practice and data-driven decision-making

For more information about Resolution Resources see: www.resolutionresources.com.au

Emma-May Litchfield and Danielle Hutchinson

Danielle Hutchinson is an Australian Lawyer with a special interest in dispute resolution within education settings. She is also an Academic at the University of Melbourne and RMIT University. In 2014 she received an award from the University of Melbourne in recognition of her work assisting university staff to resolve workplace disputes. At Melbourne she teaches the principles of evidence-based practice and collaborative practice across several Masters Programs within the Melbourne Graduate School of Education. Danielle has published in the areas of Assessment, the use of Large Scale Testing and the application of Psychometrics in the development of Professional Standards. Danielle is completing her PhD in Law at RMIT and teaches Commercial Law within the School of Business and Law. Danielle will be developing a new course for RMIT in International Commercial Law for undergraduate students who are taking their minor in law. At present, she sits on the both the Executive and Academic Committees of The Global Pound Conference Series 2016-17.

Danielle’s published research can be accessed here. Her PhD project investigates the identification of measures for the evaluation of ‘disputant voice’ in the selection of and participation in Dispute Resolution processes within a commercial context.

Emma-May Litchfield is an experienced mediator, facilitator and coach with a special interest in the Education and Community sectors. Her expertise lies in supporting parties to restore, develop and enhance the relationships that are vital for their professional or personal success. She is a member of the Resolution Institute and an NMAS accredited mediator. She was a coach of the University of New South Wales team for the 2015 International CDRC Mediation Competition in Vienna. She has been an assistant facilitator for undergraduate and post-graduate units in Principled Negotiation at the University of New South Wales. She has also been an adjudicator for the UNSW Principled Negotiation competition. At present, she sits on the both the Executive and Academic Committees of The Global Pound Conference Series 2016-17.

Emma-May has a Bachelor of Arts (Music Business) and
 Graduate Diploma of Education. She is soon to undertake her Masters by research work with the goal of building her academic profile in Dispute Resolution. Her Masters project will investigate the content and pedagogical practices of mediation trainers in NSW and Victoria. She is also working on a co-authored paper examining the inter-professional conversation between lawyers and dispute resolution professionals.

Links to Global Pound Conference

The Global Pound Conference Series is a large-scale project investigating the efficiency of adjudicative and non-adjudicative dispute resolution mechanisms globally, from the perspective of the expectations and preferences of four major stakeholder groups: users, advisors, providers, and influencers (i.e. researchers and regulators). The project aims to initiate a global dialogue about dispute resolution in civil and commercial matters, with the data collected to serve as basis for future reform initiatives.

The Global Pound Conference Series is arguably the biggest research project that has ever been undertaken in the history of Dispute Resolution. Emma-May and Danielle were integral in the development of the Core Questions, and will be actively involved in the analysis of the data, including the pioneering of innovative analysis techniques drawn from the field of psychometrics.

Emma-May and Danielle facilitated the Core Questions at the GPC Singapore, in March 2016.

ADR Research Network Participation

Emma-May and Danielle are both members of the Australian Dispute Resolution Research Network and are submitting abstracts to the ADRRN 2016 Roundtable. They look forward to participating in the annual network face to face gathering for the first time.

Don’t forget that expressions of interest to participate in our 2016 Roundtable are due by the end of May!

About Dalma

Dr Dalma R Demeter is an Assistant Professor in Law at the University of Canberra. She is also an international arbitrator, and a legal practitioner for almost twenty years. Dalma has a truly international background encompassing both civil law and common law education and practice, with law degrees from leading European and US universities and Australian qualifications in higher education. She is teaching and researching in international dispute resolution, arbitration, international sales and trade law, and mooting. She is also coaching and arbitrating for the Willem C. Vis International Commercial Arbitration Moot in both Hong Kong and Vienna. Her teaching is based on extensive research, and her teaching excellence has been recognised by several awards both locally and internationally. She is supervising doctoral research in dispute resolution and trade law, and she has recently initiated the establishment of a Graduate certificate in dispute resolution program at UC, expected to be launched in 2017.

Combining teaching with practice, Dalma is also an arbitrator in international commercial disputes and a partner at the Australasian Dispute Resolution Centre. She is a member of the Executive Committee of the UNCITRAL National Coordination Committee for Australia (UNCCA), of the Law Council of Australia International Division, of the ACT Law Society International Lawyers’ Committee, and of numerous arbitral institutions globally. She is also a contributor to law reform inquiries in private international law, alternative dispute resolution and international trade law. She is fluent in English, Hungarian and Romanian.

Dalma’s research

Dalma’s current research focuses on improving access to and efficiency in dispute resolution more broadly. Throughout 2016, Dalma is researching internationally on a number of different projects.

Global Pound Conference Series

Dalma serves on the Academic Review Committee for the Global Pound Conference Series. The Global Pound Conference Series is a large-scale project investigating the efficiency of adjudicative and non-adjudicative dispute resolution mechanisms globally from the perspective of the expectations and preferences of four major stakeholder groups: users, advisors, providers, and influencers (i.e. researchers and regulators). The project aims to initiate a global dialogue about dispute resolution in civil and commercial matters, with the data collected to serve as basis for future reform initiatives.

Legal harmonisation works of the UNCITRAL in Vienna. 

Dalma is contributing to the UNCITRAL Secretariat’s work on the development of a conciliation convention for the enforcement of settlement agreements. She is also providing input into the Secretariat’s recommendations with regard to the EU initiative towards establishing an investment court, impacting on the field of international arbitration more broadly.

Max Planck Institute for International, European, Regulatory and Procedural Law in Luxembourg

Dalma will be developing a future project to look into multicultural influences affecting choices and efficiency of dispute resolution processes. The project will serve as basis for developing a complex dispute profiling tool to assist parties in a case-by-case matching of a given dispute with the most suitable dispute resolution mechanism, as well as the characteristics and qualifications of the most suitable third party neutral. The scope of the proposed tool is for dispute resolution mechanisms to achieve the parties’ desired outcome with the least disruption, time and money spent on procedural arguments, improving access to justice through procedural efficiency.

UN Trade Law Commission in New York

Dalma was invited to present her access to justice initiatives to delegates of the UN Trade Law Commission as part of a Rule of Law panel organised in July 2016 in New York. The Commission works towards practical measures to facilitate access to justice in the commercial law context, in particular by micro-, small- and medium-sized enterprises.

Future focus

Dalma is interested in collaborations with other Australian or international researchers and educators of dispute resolution, and is happy to be contacted with questions about any of the projects she is currently involved in. Her preferred contact email is dalma.demeter@canberra.edu.au

About Frances

Frances Richards, BComm, LLM is the Principal of Frances Richards & Associates and an Adjunct Lecturer at the University of Notre Dame, Sydney Campus.

Frances is a solicitor and mediator specialising in dispute resolution in environmental planning law. She also teaches legal research and writing and is enrolled in the Graduate Certificate of University Teaching (GCUT) course at the University of Notre Dame Australia .

Frances first became interested in alternative dispute resolution when, after representing clients in the courts for many years, she attended a mediation course run by IAMA (now the Resolution Institute).  The potential of mediation for conflicts involving neighbours and local government was immediately apparent to her.

Frances’ research

Frances researches the use of mediation by local government, particularly conflicts between neighbours. In 2015 Frances brought her work in progress to the ADR Research Network Roundtable titled “Alternative Dispute Resolution(ADR): Opportunities for Councils“. She is soon to publish an article in the (2016) 21(2) Local Government Law Journal. Frances said about her experience at the ADR Research Network Forum:

I attended the ADR Research Network Roundtable in 2015 and was impressed by the knowledge of the other attendees and the collaborative and supportive nature of the Roundtable. I encourage other researchers to consider attending.

(In case you have missed it, we are currently calling for proposals for our 2016 forum).

Frances is currently researching the potential for the application of ADR to disputes over unpaid rates. She is encouraged by the research by Tania Sourdin into the use of ADR by the Australian Tax Office in disputes over taxes.

Sourdin, T. “Evaluating Alternative Dispute Resolution (ADR) in Disputes about Taxation” (2015) 34 (1) The Arbitrator and Mediator p19.

The research by Elize G Ufkes, Ellen Giebels, Sabine Offen and Karen Van der Zee into the effectiveness of mediation in neighbour to neighbour conflicts has also influenced Frances. She would like to apply their research methodology to neighbour conflicts in Australia.

Elize G Ufkes, Ellen Giebels, Sabine Offen, Karen Van der Zee “The effectiveness of a mediation program in symmetrical versus asymmetrical neighbour to neighbour conflicts” (2011) 23(4), International Journal of Conflict Management pp440 -457.

Frances sees potential for educating the community about alternative dispute resolution and for the use of technology in dispute resolution in the community. She would like to explore research in these areas in the future.

About John 

John Woodward is a PhD Candidate at UNSW. He was a solicitor in private practice as a litigation lawyer for 25 years. He is also an arbitrator for the Local Court of NSW and a mediator.  Daily contact with commercial and general litigation both as a legal representative and an arbitrator have brought him face to face in a very practical way with the anomalies of adversarialism and its shortcomings as a way to end disputes.  John became increasingly aware of the benefits of ADR and became an enthusiastic user of mediation, which his clients invariably found a much better process than the ordeal of having to go to court.  After having become accredited as a mediator, John became aware that what lawyers do in court-connected mediations “is a long way short of what real ADR is and has to offer.”  Reflecting on that led John to wonder whether lawyers are so culturally attuned to contest and rivalry that they are simply incapable of adjusting to the role of embracing the values necessary to assist clients in mediations and other ADR processes.  John suspects that court-connected mediation in NSW suffers from the same difficulties as those identified in other schemes.

John’s research

John’s research question is how lawyers are responding to mediation conducted in the shadow of the law, that is, where litigation is either under way or is an imminent threat to the disputing parties.  It seeks, through a qualitative method of semi structured interviews of lawyers and mediators, to establish how lawyers see themselves and their role in mediation.

• How do they identify as lawyers?
• What is their professional culture?
• Is it compatible with the values and beliefs of ADR?
• How do they reconcile the paradox of legality required by the courts with the freedom to negotiate offered by mediation?

If John’s research is communicated effectively to the legal profession, it has the potential to improve the quality of mediations in which lawyers participate (either as mediators or client representatives) and improve their understanding of dispute resolution.

The most serious challenge to the work so far has been confining the work to a manageable topic. John has realised that he could spend a life time and do many doctorates on topics related to court-connected dispute resolution. He also found some challenge in formulating a research framework within which to work.  Having the experience of many years of legal practice can be both beneficial as well as obstructive.  On one hand, the experience promotes a passion for the subject because he knows how much this work really matters and how it affects people’s lives at an intensely practical level. On the other hand, legal practice does not provide any assistance to become an academic researcher and acquiring those skills can be demanding.  John’s immediate challenge now is to obtain ethics approval, a task which he has almost completed.

John’s publications so far

John shared his work with the ADR Research Network Roundtable in 2015, with his work in progress titled “The Effect of Legal Professional Culture on the Integrity of Court-connected ADR”. John plans to participate in the 2016 ADRRN Roundtable.

He has also published three journal articles over the past few years.

• John Woodward, “Court-connected dispute resolution: whose interests are being served?” (2014) 25 Australasian Dispute Resolution Journal 159
• John Woodward, “Tipping the Scales: to what extent does the presence of power imbalances detract from the efficacy of principled negotiation?” (2015) 26 Australasian Dispute Resolution Journal 86,
• John Woodward, “Encouraging dialogue between large and diverse groups: the emerging field of facilitation” (2016) 27 Australasian Dispute Resolution Journal 58 (which includes a case study of the topical issue of gun control in the US).

John’s future plans

When asked where he would like to take his work post-PhD, John reflected that one of the great things about doing a PhD is that you are already there before you finish.  He really enjoys the research – so much so that he thinks he would like to continue researching.  He also enjoys writing so is hopeful that some of his work may find its way into a book at some time in the future.