As part of our occasional series profiling ADR Network Members, we profile James Duffy, law academic at Queensland University of Technology Law School in Brisbane.



1. Where does research fit in your professional work?

Research into ADR sits alongside other research I do in the fields of psychology and law and the scholarship of teaching and learning.  This is balanced with the teaching of lots of undergraduate law students at QUT.

2.  Why did you become interested in the dispute resolution field?

I spent two years working for different judges in the Queensland Court system (1 year in the Queensland District Court and 1 year in the Queensland Court of Appeal).  Being in and around the courts exposed me to the difficult life events that many people encounter.  The human and emotional costs of taking a matter to court appeared to be really taxing upon people.  I became interested in forums that parties could use that would allow them to speak their peace and be listened to by another person, without the expense and formality of court proceedings.  In many instances, taking a matter to court seemed like overkill to me.  It reinforced the idea that the substance of legal disputes was important, but the way they were resolved (procedurally) was just as important.

3.  What is your particular area of dispute resolution research interest?

I’m interested in the psychology behind ADR forums and how the answer to a legal problem is often found in a non-legal solution.  I’m not sure that I will ever be able to say that my particular area is X, or I have specialised knowledge in X area of ADR.  I like to be a generalist, and know a little bit about a lot of different areas.  At thisstage, I haven’t done a PhD, so that might focus things a little bit.

4.  Whose research has influenced you? Why/How?

I like reading work by authors that has a more literary feel to it.  Carrie Menkel-Meadow is always good to read.  Marjorie Silver is the same.  I find myself citing Laurence Boulle a lot, because he has already written about every idea that I seem to come up with (which is actually quite frustrating when you think you have stumbled across a novel idea.)  I genuinely enjoy reading work from other members of the ADR research Network.  When you have had a chance to hang out with other academics and get to know them a bit better, reading their articles is fun.  I’ve lost count of the number of times I’ve though to myself “shit, I wish I had that idea first, how clever!”  More generally, I like reading articles or books where the authors have a beautiful way with words – particularly those that flout the usual rules for peer reviewed journals.

5.  What dispute resolution research are you involved in at the moment?

I have two articles in the back of my brain that are waiting to come out.  One on the neuroscience surrounding emotion in ADR forums, and another suggesting that positive psychology principles explain why people mediate.  I’m looking forward to a bit of connected research time to commit these thoughts to paper.

6.  Where would you like to take your dispute resolution research work over the next ten years?

I don’t know what I’m doing next week, let alone in ten years time.  Quantitative empirical work.  

7.  What advice do you have for emerging dispute resolution researchers?

Have a coherent story you can tell yourself (and others) about why dispute resolution research is important.  Depending on the University faculty you are part of, dispute resolution research may not be viewed as favourably as other areas.  Secondly, if you are from a legal background, try and skill up in research methods apart from doctrinal research.  Good empirical research is very publishable.

This post presents an overview of a paper by myself and Rachael Field which I presented at the recent ADR Research Network Roundtable, entitled ‘Learning to Play the Language Game: Confronting the Hidden Challenges of Family Mediation’.

Mediation is becoming more and more prominent as a mode of dispute resolution in family law matters. There are many benefits that can be claimed for mediation as a mode of resolving family disputes, including its informality, flexibility and less confrontational nature. These benefits make mediation a potentially suitable method for resolving many types of post-separation issues. However, even while offering parties the opportunity of consensual, non-adversarial dispute resolution, mediation can also present them with significant challenges.

The greatest of these challenges perhaps arise where parties in family mediation must negotiate on their own behalf, since lawyers are either not present or are excluded from the process. Mediation in the absence of legal representation requires parties to effectively articulate their own stories, interests, issues and concerns, as well as potentially those of their children. Participants in family mediation are expected to be reasonable, engaged and effective negotiators at a time in their lives – post-separation – which is, in many cases, one of the most chaotic, difficult and emotional.

There are, therefore, obvious challenges facing unrepresented parties in family mediation, particularly those with little prior knowledge of the process. It might be thought that these problems are counteracted by the relatively informal character of the mediation environment. However, the family mediation environment, despite its relative informality, is structured by underlying conventions and expectations that are often opaque to inexperienced participants.

Ludwig Wittgenstein’s notion of a language game offers a way of thinking about the underlying conventions in different forms of social discourse. Wittgenstein notes that language fundamentally influences – and, indeed, constructs – the ways in which people interact. Language is linked to social behaviour and to the social dynamic. Effective communication, then, becomes a matter of understanding the applicable social context and knowing how to play the relevant language game.

Mediation researchers and practitioners need to pay attention to the language game of mediation in order to help parties navigate the process. Party preparation can play an important role in enabling inexperienced participants to engage effectively in family mediation and protecting vulnerable parties from being disadvantaged by hidden expectations. Helping parties understand the language game of family mediation represents a critical new focus of family law practice.

Monash University is pleased to announce that ‘The Future of Civil Procedure – Innovation and Inertia’ forum will be held on 17 February 2016 as part of the Civil Justice Forum (17 – 19 February 2016).

Times are changing – how is the civil justice system keeping up? Join us for a discussion about how the legal system is evolving in its dynamic environment. This exciting forum will cover key issues in the modern legal environment, such as the role of courts in a changing environment, the impact and use of technology on law and litigation funding and regulation.

Participants at the forum will include judges, magistrates, practitioners, policy-makers, academics and other experts working in civil justice, in courts and tribunals, and throughout the justice system more broadly.

The program for the forum is under development, but we invite you to save the date to attend this event.  Please email lisa.wulfsohn@monash.edu if you wish to be put on our contact list.

We look forward to seeing you at Monash University in 2016.

Monash University is pleased to announce that Civil Justice Forum’s Academic Focus Conference will be held on 18-19 February 2016 as part of the Civil Justice Forum (17 – 19 February 2016). The conference was previously known as the Civil Justice Teaching and Research Conference.

Join us for a stimulating discussion about researching and teaching civil procedure and dispute resolution. The conference will enable participants to share valuable knowledge and perspectives on topics such as research relating to class actions, litigation and dispute resolution and challenges and innovation in teaching civil procedure.

Monash University invites submissions on topics relevant to civil procedure research and teaching. Please email a short abstract to lisa.wulfsohn@monash.edu by 30 October 2015.

The program for the conference is under development, but we invite you to save the date to attend this event.

We look forward to seeing you at Monash University in 2016.



photo courtesy State Library of Queensland

Here at the ADR Research Network we are proudly hosting our 4th Round Table at UNSW, Sydney this Saturday 12 & Sunday 13 September. We have 15 papers, each with a commentator and facilitator, two plenary sessions on developing ADR research and around 20 excited attendees, ranging from Professors of ADR in Australia and Canada to ADR professionals and PhD students. Lots of time has been left for discussion of papers and informal chats. Papers discussed are works in progress and we aim to harness our collective expertise to make the dispute resolution research presented even better. 

We will be live tweeting the event for our Twitter account @ADRResearch and are posting some paper summaries here in our blog. Papers presented include

•     Family Dispute Resolution in multicultural and multi-faith Australia  
•     Mediator Effectiveness  
•     Accessing “justice” outside of courts and tribunals 
•     Conflict in Planning Disputes in Melbourne 
•     Discerning the Seat of Arbitration 
•     The role of local government in NSW in the referral of disputes to alternative dispute resolution services 
•     ADR: A European Perspective  

Stay tuned!

On Friday 4th September 2015, LEADR and IAMA, two of Australia’s largest dispute resolution service providers completed the final stage of their amalgamation.  LEADR and IAMA formally integrated on 1 January 2015.  Previously, they had worked as separate organisations, seeking to improve awareness and quality of ADR practices in Australia.  To an extent, they were also in competition with each other to attract membership fees, and to provide training programs to members of the public.  The final part of their amalgamation was to announce a new name and logo.  The new name is “Resolution Institute”.  The logo is pictured below.

Because organisations like the new Resolution Institute offer so many services and purport to do so many things, I’m always keeping my eye out for little statements that neatly sum up what they really do.  I haven’t been able to find a branded Resolution Institute constitution yet, but I suspect that it will contain a purpose/object section similar to the LEADR & IAMA constitution.

The Objects of the company are to:

1. promote the use of dispute resolution (DR) practised by its Members;
2. foster the use of DR to prevent, manage and resolve conflict and disputes;
3. contribute to the growth and development of DR through consultation with government, business, individuals and other organisations;
4. provide information about DR and about DR practitioners to the public;
5. develop and support high standards of practice in DR;
6. provide and encourage the provision of education, training, accreditation and research in DR; and
7. provide services to support the professional development and practices of DR practitioners.

With the people sitting behind this new organisation, there is every reason to think this merger will work.  One question (and perhaps a little controversial) I’d like to propose to blog readers is this:

Are there downsides to LEADR and IAMA merging?

A recently published article came across my desk today and I thought it was worth mentioning here in our blog, because it covers a newer form of dispute resolution in a highly commercialised area of law: takeover disputes. I admit I don’t know much about takeover law and maybe that’s because so many of us involved in dispute resolution are not commercial law-type people. That’s a shame because commercial law and ADR should and do go hand in hand.

Ian Ramsay, Professor of commercial law at the University of Melbourne, has recently published this excellent article on takeover panels as an alternative to litigation for resolving takeover disputes. The Australian Takeover Panel has operated since 2000 and was established to reduce tactical litigation by target companies wanting to resist takeover bids. The takeover panels, according to Ramsay, has proven a low- cost and efficient forum for the resolution of takeover disputes and is used by both private parties and regulators such as ASIC.
The piece is worth a read, whether you are commercially- minded or not.

I just read an article by Jen De Vries called “Merit: A trump card or a card trick” and it got me thinking about the sticky business of assessing the “merits” of a dispute. This week I am placing myself in the role of an Associate Judge and assessing the oral advocacy skills of final year law students. In applying the assessment rubric I am struck by the influence of factors such as confidence, innovation, bravery, humour, or more basic human engagement in the persuasiveness of an advocate. Even though a judicial officer aims to objectively assess the merits of the legal cases presented, they are in the end human beings who may be influenced by their perceptions of the parties or advocates, previous experiences with the people or dispute, their level of hunger or comfort, their general mood or mental wellbeing, the time of day, and how bored they are feeling. I will admit that the final observation is influenced by my hearing seven lots of the same set of moot issues this week! The process of “objective” decision making is inevitably influenced by “subjective” factors, simply because decision makers are beautiful, messy, not-so-rational-as-they-think human beings.

There are seldom any rules in non-judicial dispute resolution about the basis upon which decisions ought to be made. Therefore, the “merits” of the dispute are not necessarily the driving factor in decision-making. Mediation and conciliation processes have scope to support individualised justice, in keeping with values such as responsiveness and self-determination.

In consensus based decision making the decision makers do not aspire to objectivity, as they are the parties themselves and they are expected to act out of self interest and in accordance with their personal priorities. Granted, those self interests may include being accommodating to the other party, offering the other party what they say they need, or pursuing outcomes that don’t reflect the “objective assessment of the merits” of the particular dispute in question. It is true that sometimes parties may appeal to “objective merits” when arguing that their own perspective is more valid than that of other parties. This is reflective of the fact that the concepts of “merits” and objectivity are foundational to the perception of justice.

Legal representatives will often provide a “voice of reason”, a “reality test” to counteract their client’s deficit of being “too close” to the dispute. I leave for now a radical thought questioning the perception that a person’s intimate human experience of a dispute is deficient or problematic. There is a strong assumption from the legal perspective that the “proper” way to analyse a dispute is from an objective point of view. It is in fact essential that lawyers provide a legal analysis of their client’s problem in order that the clients take that into account in deciding how they want to deal with their dispute. This is a professional responsibility, and I do not intend to challenge the idea that this is central to the legal professional service.

Third party dispute resolution professionals in consensus based processes, such as mediators and conciliators, may also form their own view about the “merits” of a dispute. Just like judges and lawyers, their assessment will be influenced by many subjective or non-merit based factors. Unlike judicial officers, they do not have the benefit of having heard evidence curated and presented according to the rules of evidence that are designed to support revelation of the objective truth. Dispute resolution practitioners ought to be mindful about how they use their own objective assessment of the merits. In particular, being wise to the non-objective factors which are likely to have influenced that assessment is quite important.

A quick search has revealed the following articles that might offer further ideas about these issues:

Lola Akin Ojelabi and Mary Anne Noone, “Ensuring access to justice in mediation within the civil justice system” (2014) 40(2) Monash University Law Review 528.

Howard Gillman, “What’s Law Got to Do with It? Judicial Behavioralists Test the “Legal Model” of Judicial Decision Making” (2001) 26 Law & Soc. Inquiry 466

Duncan Webb, “The negotiator’s ethic: fair minded self-interest” (1993) 23(4) Victoria University of Wellington Law Review 255.

I look forward to other people’s thoughts about these issues. Please contribute in the comments below.

LEADR & IAMA have announced their annual conference offering on their website – http://www.leadriama.org/kon-gres-home

The format is the same as previous years – the conference will move between Sydney, Melbourne, Hobart, Auckland, Brisbane, Adelaide and Auckland.

In a very provocative and wide ranging piece, Hilary Sommerlad argues that the ethic of care originating with Carol Gilligan and developed by difference feminists since the 1990s has undermined the ethic of justice, largely through reliance on arguments that have facilitated the development of mediation and other forms of restorative justice and promoted legal pluralism: The Ethics of Relational Jurisprudence, (2014) 17 Legal Ethics 281.

Sommerlad claims that Gilligan’s ethic of care provided a language to argue for a change in ‘the dominant ideology from individualist to one that is interconnected … from a right-based focus to a focus on both care and rights/justice, from power-over to empowering’ (citing Leslie Bender, ‘Changing the Values in Tort Law’ (1990) 25 Tulsa Law Journal 759, 907). Difference feminists understood knowledge as contextual and embedded in experience and situation, and urged that legal methodologies be developed to recognise intimacy and connectedness and to permit empathic perspective taking, such as mediation, or less adversarial lawyering.

Sommerlad’s argument is grounded in a deep understanding of recent legal philosophy and history. She challenges the arguments developed by difference feminists based on Gilligan’s ethic of care for their ahistorical nature and tendency to naively romanticise community and care, failing to acknowledge that ‘care can be a most insidious form of control’.

She also condemns difference feminists’ omission in not recognising the flexible and contextual nature of much common law reasoning, and subsequently their failure to ‘engage with the contingency of law’s claimed formalism and autonomy, at the moment when it was so clearly being challenged’.

Whilst there is much value in these observations, Sommerlad’s own failings appear in her critique of the link between the ethic of care, neoliberal delegalisation and a shift to therapuetic jurisprudence that has characterised many western legal systems.  Whilst greater reliance on informal legal processes may undermine access to justice and diminish rights, Sommerlad is not able to establish mediation’s complicity in this outcome.  She relies on outdated and unsubstantiated claims that mediation ‘fails to take account of the gendered power imbalance’ and research that indicates that ‘aggressive advocacy and strict reliance on doctrine and procedure’ achieves better outcomes for women clients, at least in family law.

Mediation is no panacea, but a more nuanced and empirical appraisal of its role is required before it can be held responsible for the broader failings of the legal system. Further, whilst rights are clearly important, especially to those who have few, many will prioritise their relational connections, their emotional wellbeing and their bank balance in preference to aggressive advocacy. For some it will be more important to be empathically heard, and to listen with their whole being, and so to recognise the full humanity of the other. Mediation offers this promise. Gilligan’s ethic of care remains instructive.