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Self-Represented Litigants – a Canadian study, needed in Australia too

Professor Julie Macfarlane from Windsor University in Canada is running a very interesting project on self-represented litigants. Her blog post yesterday (2 February) brings to my attention a phenomenon I had simply never considered before – the ’roundabout’ nature of many clients engaging with legal advisors – they come and go when (if) they have funds available to pursue their case, and at other times may be self-represented. The phenomenon of course is very wide spread – Macfarlane found that 53% of self-represented litigants commenced their actions with a lawyer. It would be very worthwhile undertaking similar research in Australia – I suspect the percentage might be even higher here.

Ethics and the Mediation Community

Posted on 28/01/2014 by Jonathan Crowe

What does it mean to think communally about mediation ethics? It’s tempting to conceive ethics as a set of abstract rules or principles formulated by experts and then imposed from above. However, another way to think of ethics is as the product of a dynamic, community oriented process. Experienced mediators who seek to adopt an ethical attitude to their practice will notice patterns in their approaches to various disputes. Reflection upon these patterns then supplies the foundation for formulating general guidelines that arise organically from the process. This approach to identifying principles of mediation practice treats these principles are subsidiary to the situational nature of ethical judgments.

The model of mediation ethics sketched above is community oriented, rather than individualistic. This is because it recognises that the source of meaningful ethical guidelines lies in the accretion of experience in different mediation contexts over time. Mediators, then, can learn not just from their own practice, but from the experiences of others who accept the same general ethical outlook. Mediation ethics depends on the sharing of principles and guidelines throughout the mediation community. This makes full use of the store of knowledge reflected in the diverse experiences of mediators.

The community oriented model of ethics outlined above points to the importance of recognising mediation as a profession with its own specialties. This applies not only at the general level of recognising the distinctiveness of mediation, but also at the level of recognising the particular challenges that arise in, say, family mediation and allowing a store of knowledge to arise about the ethical guidelines applicable to family mediators. It may be that beyond the overarching value of party self-determination, different forms of mediation will generate quite different guidelines for ethical practice.

I do not mean to suggest there is anything radical or groundbreaking about this model. Indeed, I think it describes what already happens on an organic basis. However, the organic nature of ethics is not always fully appreciated. This results in the adoption of abstract principles that can distort or mask the evolved character of the guidelines practitioners actually follow. A mature model of mediation ethics will not hide the complexities of mediation behind the veneer of impartiality. It will embrace those complexities and challenge itself to develop ethical guidelines that can cope with them.

I’ve written previously about the evolution of ethical and legal judgments in my chapter on ‘Pre-Reflective Law’ in Maksymilian Del Mar (ed), New Waves in Philosophy of Law (Palgrave Macmillan, 2011), as well as other publications. I’m interested in exploring further what this means for mediation theory and practice.

Career opportunities in dispute resolution, Sydney

Posted on 28/01/2014 by Lisa Toohey

Two outstanding career opportunities have come up in Sydney:

A new role as General Manager for LEADR described in the position description in the following terms:

The GM (Aust) will be responsible to the CEO for managing the day to day operations of LEADR in Australia, will contribute to projects that have Australasia-wide application and will assist in identifying opportunities and relevant developments. The GM (Aust) will also work collaboratively with member committees and an energetic team to deliver a range of services to members, to raise business and community knowledge about ADR, to influence government and statutory authorities to promote the use of ADR and to encourage the continued development of ADR standards.

The Parramatta Community Justice Centre is also advertising a range of full and part time mediation advisors. Again, from the position description:

Mediation Advisors are the first point of contact for clients and referrers seeking information regarding CJC services. Mediation Advisors are responsible for assisting clients and referrers with their enquiries maintaining a high standard of individual client data entry and working as part of team.

Indigenous people’s experience of multiple legal problems and multiple disadvantage

Posted on 23/01/2014 by Lisa Toohey

An interesting and valuable working paper has been published by the Law and Justice Foundation of New South Wales, titled “Indigenous people’s experience of multiple legal problems and multiple disadvantage — a working paper.”

The working paper is based on data gathered in 2008 and published in the 2012 Legal Australia-wide Survey, which was self-described as a “comprehensive quantitative assessment across Australia of an extensive range of legal needs on a representative sample of the population. It examines the nature of legal problems, the pathways to their resolution, and the demographic groups that struggle with the weight of their legal problems.”

It revisits some of the 2008 data on the legal problems experienced by indigenous people, exploring the connections in more detail. Table 1 (pasted below) encapsulates the key dilemma for indigenous people: being indigenous statistically doubles your likely number of legal problems if you are female, and nearly triples them if you are male. And, it doubles your number of substantial legal problems, which are defined as problems having a moderate to severe impact upon daily life. (See the survey report, page xvi).

Table 1 UJ36

Combine this with systemic socio-economic disadvantage, and a lack of accessible legal infrastructure, it is clear that there is a desperate need for resources to be put into indigenous legal services. As the report itself concludes, “The heightened vulnerability to multiple legal problems that occurs at an earlier age for Indigenous people, and continues through to middle age, may be yet another marker of the ‘wicked’ nature of Indigenous disadvantage in Australia.”

The full report is online at http://www.lawfoundation.net.au/ljf/site/templates/UpdatingJustice/$file/UJ_36_Indigenous_multiple_legal_problems_and_disadvantage_FINAL.pdf

If it takes a village to raise a child, how do we get back to the village?

Posted on 09/01/2014 by Dr Rosemary Howell

Interesting new discussion chain from the Conflict Coaching Guild on Linked In. The two themes remind us to think about what and how schoolchildren are learning about ADR. If we are being seen to promote connectedness across the ADR field (and I assert that is an important role for ADR professionals), what are we doing to influence what children learn? The chain also investigates ongoing communication challenges and skills training necessary to meet them.

Lawyers as coaches for self-represented litigants

Posted on 17/12/2013 by Dr Samantha Hardy

A very interesting blog post by Dr Julie Macfarlane in which she sketches out the basics of a lawyer-coach role as an additional way of offering legal services.

http://drjuliemacfarlane.wordpress.com/2013/12/14/seriously-lawyers-coaching-srls-in-self-advocacy-why-this-paradoxical-proposition-deserves-your-serious-consideration/

Collaboration and ADR Community – a great new experience

Posted on 10/12/2013 by Dr Rosemary Howell

Despite committing to a field which scrutinises, develops and enhances the resolution of disputes, our ADR community seems to attract more than its own fair share of conflict.

The best thing about the meeting of the ADR Network in Brisbane last week was the wonderful spirit of collaboration. What a pleasure to see outstanding ADR academics and professionals from around the country working together harmoniously to share ideas and critique each other’s ideas constructively. It was a big lesson about what we can accomplish when we model the behaviour we encourage in our writing. As a result, the publication we are planning has a theme – Challenging Professional Identities in Dispute Resolution – and a cohesion not possible without this kind of engagement.

Well done @BeckyBatagol and @rachaelfield68 for terrific organisation and leadership and thank you to all the group members for encouragement and wisdom.

Who’s Who Legal 2013 – ADR Roundtable

Posted on 09/12/2013 by Dr Rosemary Howell

Interesting piece from Who’s Who Legal about what is happening internationally in ADR

See http://whoswholegal.com/news/features/article/30918/roundtable-commercial-litigation-2013/?utm_medium=email&utm_source=Law+Business+Research&utm_campaign=3273559_WHO+Briefing&dm_i=1KSF,1Y5W7,AVTOVS,704NI,1

Once again it looks like the take-up of ADR is more a reflection of price sensitivity than of an awakening in lawyers of where and how ADR can support their clients’ interests. Perhaps it doesn’t matter what the motivation is provided the outcome builds the platform. What the article doesn’t say (but what I suspect) is how ADR is being used. I think it is very likely that what we are seeing is simply the growth and entrenchment of the settlement mediation model.

The melodrama of conflict

Posted on 06/12/2013 by Dr Samantha Hardy

One of my big projects at the moment is working on a book called the Melodrama of Conflict. My theory is that people who are not managing conflict well tend to tell their story of conflict in the genre of melodrama (the proper classical genre, not the way we use the term colloquially).

Professor Nadja Alexander and I developed the REAL Conflict Coaching System to support people in conflict to move away from dysfunctional melodramatic conflict narratives. We want our clients to move from being a passive victim to being the active hero of their future conflict story. It might sound weird, but I think a better genre for a constructive conflict narrative is tragedy.

To find out more, listen to my talk to the International Coaching Federation in the USA on coaching people through the melodrama of conflict (this is a recording of the tele-seminar, so there’s a bit of chit chat at the start as people logged into the call): http://www.freeconference.com/RecordingDownload.aspx?R=13352997&C=734&E=193325

Unpacking the “adversarial advocate”

Posted on 04/12/2013 by Dr Olivia Rundle

The traditional lawyer is described as the “adversarial advocate”. I have been contemplating what this actually means when the traditionally oriented lawyer works within the context of dispute resolution. What does “adversarial” mean – does it mean to be oppositional with others or does it mean to be partisan for the client? What does “advocate” mean – does it mean to put an argument on behalf of the client or is it a substitute for the title “lawyer”? If it means the former, does an advocate necessarily act as spokesperson and the client refrain from participation?

Let’s start with some dictionary definitions of each of the words. These are taken from the online Oxford Dictionary.

“Adversarial” is an adjective and has two meanings. First, “involving or characterised by conflict or opposition”. This meaning brings in a competitive flavour. Secondly, a law specific meaning of adversarial is offered in the dictionary, describing a trial or legal proceedings “in which the parties in a dispute have the responsibility for finding and presenting evidence.” The adversarial legal system relies upon this responsibility, which is traditionally performed by the lawyers. The second definition does not necessarily have the competitive flavour of the first.

“Advocate” is a noun that also has two meanings offered in the dictionary. First, “a person who publicly supports or recommends a particular cause or policy”. Secondly, “a person who puts a case on someone else’s behalf”. The second meaning is the traditional notion of the role of the lawyer. However, can a lawyer put a case on a client’s behalf while also facilitating the client’s direct participation in the process?

Simply on the basis of these definitions, I would argue that:

1. A lawyer can adopt the quality of being “adversarial” without being oppositional/competitive in approach.

2. When applied to lawyers, the term “advocate” means partisan representative of the client’s interests.

3. An advocate can facilitate direct client participation – meaning that collaborative participation with the client or restricting the lawyers’ role to expert legal opinion are both available as well as the spokesperson role. The point is that the lawyer’s contributions are on behalf of the client. The client can also contribute.

I’m posting this because I am interested in other people’s thoughts about these tentative ideas.

What do you think?