Do consumers and businesses want the benefits of rule of law without the costs of rule of law?

Posted on 12/10/2020 by Oz Susler

Among its multiple purposes, this Blog offers a space to highlight emerging research in the discipline of dispute resolution. To this end, I have invited Vivi Tan who is undertaking her PhD on the integration of information and communication technologies into dispute resolution processes and its ramifications. Thank-you for sharing Vivi.

Vivi Tan is a PhD student at Melbourne Law School. She researches across fields of consumer protection law, contract law and dispute resolution system and design, including alternative and online dispute resolution. Her thesis explores the integration of information and communication technologies into judicial and extrajudicial dispute resolution processes and their implications for dispute resolution regulation and practice as well as for consumer protection law. Vivi has also taught Obligations and Contracts in the JD course and is currently teaching in the subject of Artificial Intelligence, Ethics and the Law. She is also an active member of the Centre of Artificial Intelligence and Digital Ethics.

By Vivi Tan

Much of the progress in relation to the implementation of publicly enforced ODR systems is mainly evident in North America[1], the US[2], the UK[3], the EU[4] and China[5]. The types of ODR systems implemented vary according to their level of automation[6] and their positioning within the broader existing legal system or framework. Closer to home, we have seen ODR pilots being undertaken by tribunals such as NCAT and VCAT. A number of studies, commentaries and reports have also unanimously promoted the use of ODR.[7] This reflects the ongoing recognition that ODR can potentially augment and improve existing consumer ADR mechanisms as well as tribunal or judicial dispute resolution mechanisms.

Given the increasing realisation and implementation of ODR within formal legal systems, it is crucial that attention is given to developing and utilising a robust dispute system design (“DSD”) framework to ground the design, implementation and governance of such ODR systems. We must not only focus on the analysis of the efficiency and accessibility drivers behind ODR[8], we must use a theoretically grounded framework to rigorously analyse the suitability of an ODR system as an institution, including the substance and outcomes of the rule choices within the system, the nature and quality of procedural and substantive justice that has been designed, and whether the system can effectively deliver it.[9]

To this end, I drew upon insights from the rich discourse on DSD and developed an analytical DSD ODR framework. The use of such framework should be treated as a distinct activity that has the potential to improve the design and effectiveness of ODR systems and the overall landscape within which they sit.[10] The DSD framework can generate normative values, legal and governance considerations relating to how disputes should be resolved and through what structures. In the consumer context, the framework can be used to analyse critical questions such as whether a consumer ODR system can be designed to enhance the core objectives of consumer dispute resolution; whether its process architecture can be designed to be consistent with the principles and values that are fundamental in a publicly-sanctioned dispute resolution system and vital to the due administration of civil justice and; whether a consumer ODR system can be designed to produce appropriate substantive outcomes?

Put simply, dispute system designers can use the DSD framework to critically analyse considerations and choices relating to:

the system design (system institutionalisation)
the process design (appropriateness of tools and processes to be used) and
the governance design (procedural and substantive safeguards, systematic oversight and evaluation).

The design of this analytic framework is highly influenced by the contributions in the DSD field from Ury et al, Constantino and Merchant, Bingham, Ostrom, Smith and Martinez, and, from the consumer dispute resolution field, Steffek et al., Hodges et al. and Gill et al.[11] In particular, it attempts to reconcile the earlier DSD contributions, which tended to have a process design focus, with the later contributions which put more emphasis on system design and governance focus. Since a detailed analysis of the DSD framework will be beyond the scope of this article, I will instead provide a summary of what each aspect entails.

The system design aspect is primarily concerned with the institutionalisation of ODR as a dispute resolution mechanism within Australia’s consumer regulatory and policy context. Dispute system designers will need to consider the unique characteristics of consumer disputes and the kinds of goals and objectives behind consumer redress and consumer protection regulations. The designers can then consider whether there needs to be prioritisations or trade-offs amongst those goals and how they are to be reflected in the design of the system.[12] There must also be a critical analysis on the interaction between the ODR system and other dispute resolution processes in the existing consumer redress framework in order to guide the positioning and integration of ODR as either an alternative or an additional model which can augment existing mechanisms of consumer redress.

System design considerations are to be treated as primary considerations which will directly influence and shape the governance and process design considerations. The process design considerations in turn focus on process architecture behind the ODR system including the different process options (prevention, management and resolution), the different resolution approaches (rights vs interest-based, adjudication vs settlement, intermediation) as well as the different functional characteristics. For example, system designers will need to consider the extent of integration of technology such as automated- decision-making functionality or artificial intelligence and its implications on the overall system, process and governance aspects of the ODR system.[13]

Finally, it is important that system designers pay close attention to governance considerationswith a view to fully integrate them onto the process architecture and to minimise the risks that ODR presents to the preservation of civil justice values such as accessibility, legal validity, transparency and accountability.[14] As part of a systematic oversight and governance strategy, the system must be evaluated using quantitative and qualitative criteria to measure its effectiveness in meeting its goals and its ability to provide access to procedural and substantive justice[15] for consumers.

I hope that this ODR DSD framework can be used to critically analyse the choices relating to how a consumer ODR system should be designed, how its processes should be structured and how the system and its processes can be governed and evaluated. I also hope that the framework will have broader application to other disputing contexts as well.

[1] ‘Civil Resolution Tribunal British Columbia’ <https://civilresolutionbc.ca/>; ‘Condominium Authority of Ontario’ <https://www.condoauthorityontario.ca/tribunal/>; ‘The Platform to Assist in the Resolution of Litigation Electronically (PARLe)’ <https://www.opc.gouv.qc.ca/en/opc/parle/description/>.

[2] The National Center for Technology and Dispute Resolution, ‘Courts Using ODR’ <http://odr.info/courts-using-odr/>; ‘Utah Courts Small Claims Online Dispute Resolution Pilot Project’ <https://www.utcourts.gov/smallclaimswvc/>.

[3] ‘UK Online Money Claim’, GOV.UK <https://www.gov.uk/make-court-claim-for-money>; ‘Online Court and Tribunal Services for Professional Users and the Public’ <https://www.gov.uk/guidance/online-court-and-tribunal-services-for-professional-users-and-the-public>.

[4] ‘EU ODR Platform’ <https://ec.europa.eu/consumers/odr/main/?event=main.home2.show>.

[5] China Justice Observer, ‘COVID-19 Turns All Chinese Courts into Internet Courts Overnight’ <https://www.chinajusticeobserver.com/a/covid-19-turns-all-chinese-courts-into-internet-courts-overnight>; ‘The Litigation Platform of Hangzhou Internet Court’ <https://www.netcourt.gov.cn/portal/main/en/index.htm>.

[6] Vivi Tan, ‘Online Dispute Resolution For Small Civil Claims in Victoria: A New Paradigm in Civil Justice’ (2019) 24 Deakin Law Review 101. In this article, I argued that ODR systems to be differentiated through their level of automation and function. Such classification based on the level of automation focuses on the functionality of the ODR system. At one end of the spectrum, ODR can include technology-based substitution or automation of offline interactions and activities.[1] And at the other end of the spectrum, there are more complex automated ODR systems which have the potential to offer problem diagnosis and resolution capabilities that are fully automated.

[7] VCAT ODR Pilot Team, ‘VCAT ODR Pilot – a Case Study’ (at the ODR The State of the Art International Symposium, 22 November 2018) <https://www.odrmelbourne.com.au/>; ‘NCAT Online Dispute Resolution Pilot’ <http://www.supremecourt.justice.nsw.gov.au/Documents/Publications/Speeches/2016%20Speeches/Wright_120816.pdf>; Tan (n 6); Tania Sourdin, Bin Li and Tony Burke, ‘Just, Quick and Cheap: Civil Dispute Resolution and Technology’ (2019) 19 Macquarie Law Journal 17; Peter Cashman and Eliza Ginnivan, ‘Digital Justice: Online Resolution of Minor Civil Disputes and the Use of Digital Technology in Complex Litigation and Class Actions’ (2019) 19 Macquarie Law Journal 39; Monika Zalnieriute and Felicity Bell, ‘Technology and the Judicial Role’ in The Judge, the Judiciary and the Court: Individual, Collegial and Institutional Judicial Dynamics in Australia (Cambridge University Press, 2020); Michael Legg, ‘The Future of Dispute Resolution: Online ADR and Online Courts’ (2016) 27 Australasian Dispute Resolution Journal 227; Productivity Commission, Access to Justice Arrangements, Inquiry Report No.72 (2014) 68; Victorian Government, Access to Justice Review Report and Recommendations (Volume 1) (August 2016) <https://s3.ap-southeast-2.amazonaws.com/hdp.au.prod.app.vic-engage.files/3314/8601/7221/Access_to_Justice_Review_-_Report_and_recommendations_Volume_1.PDF>; Productivity Commission, Consumer Law Enforcement and Administration (2017).

[8] Tan (n 6); Legg (n 7); Lee A Bygrave, ‘Online Dispute Resolution – What It Means for Consumers’ (Baker & McKenzie Cyberspace Law and Policy Centre in conjunction with the Continuing legal Education Programme of University of NSW, 2002). Bygrave argued that the ‘quick-fix’ enthusiasm surrounding the online facilitation of ADR focused too heavily on the efficiency arguments or drivers such as the apparent speed, flexibility and affordability relative to traditional litigation in the courts as well as the ability to alleviate pressure on the court system. Legg has similarly argued that ‘achieving access to justice requires careful attention on the key [ODR] design considerations including convenience, expertise, impartiality, fairness and costs’.

[9] Lisa Bingham, ‘Designing Justice: Legal Institutions and Other Systems for Managing Conflict’ (2008) 24(1) Ohio State Journal on Dispute Resolution 1, 19, 25–26.

[10] Andrew Le Sueur, ‘Designing Redress: Who Does It, How and Why?’ (2012) 20 Asia Pacific Law Review 17.

[11] William Ury, Jeanne Brett and Stephen Goldberg, Getting Disputes Resolved: Designing Systems to Cut The Costs of Conflict (Jossey-Bass, 1988); Cathy A Constantino and Christina S Merchant, Designing Conflict Management Systems: Guide to Creating Productive and Healthy Organisations (Jossey-Bass, 1^st ed, 1995); Bingham (n 9); Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action (Cambridge University press, 1990); Stephanie Smith and Janet Martinez, ‘An Analytic Framework for Dispute Systems Design’ (2009) 14 Harvard Negotiation Law Review 123; Felix Steffek and Hannes Unberath (eds), Regulating Dispute Resolution – ADR and Access to Justice at the Crossroads (Hart Publishing, 2013); Christopher Hodges, Iris Benöhr and Naomi Creutzfeldt, Consumer ADR in Europe: Civil Justice Systems (Hart Publishing, 2012); Chris Gill et al, ‘Designing Consumer Redress: A Dispute System Design (DSD) Model for Consumer-to-Business Disputes’ (2016) 36(3) Legal Studies 438.

[12] Michael J Trebilcock, ‘Rethinking Consumer Protection Policy’ in Charles E F Rickett and Thomas G W Telfer (eds), International Perspectives of Consumers’ Access to Justice (Cambridge University Press, Online Publication, 2009) 68.

[13] Tan (n 6); Robert J Condlin, ‘Online Dispute Resolution: Stinky, Repugnant, or Drab’ (2017) 18(3) Cardozo Journal of Conflict Resolution 717.

[14] Tan (n 6).

[15] Bingham (n 9); Mary Anne Noone and Lola Akin Ojelabi, ‘Alternative Dispute Resolution and Access to Justice in Australia’ (2020) 16(2) International Journal of Law in Context 108.

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Of Dry Cleaning, Arbitration, and International Commercial Courts: When Courts Can Learn From ADR

Posted on 17/06/2020 by Dr Benjamin Hayward

By Dr Benjamin Hayward and Dr Drossos Stamboulakis

‘Those of you who have been to a dry cleaner in the United States may have seen a sign that says, “Fast. Good. Cheap. Pick two.” What this means is that you can have your dry cleaning good and fast, but it won’t be cheap. Or you can have it good and cheap, but it won’t be fast. Or you can have it fast and cheap, but in that case it won’t be good. What you can’t have is all three …

Some people … seem to think that what applies to dry cleaning doesn’t apply to international arbitration.” [1]

Image: Cosmocatalano, public domain

Alternative dispute resolution might be alternative to the courts, but that doesn’t mean it’s disconnected.

International commercial arbitration and the courts have an important, and mutually beneficial, relationship. Arbitration relieves pressure on our civil justice system. Courts use their powers to support the arbitral process and enforce arbitral awards. Arbitration and the courts also can – and do – learn from each other.

This last notion might seem strange, given that arbitration was traditionally seen as quicker and cheaper than litigation. The reality now, however, is that both arbitration and litigation can be time consuming and expensive. In light of this reality, both dispute resolution mechanisms have sought to improve their procedures over time. When arbitration innovates, courts learn. And when courts innovate, arbitration learns too.

All the while, both dispute resolution mechanisms must also deal with inevitable tensions arising between speed, quality, and cost.

In recent years, a number of international commercial courts (ICCs) have been established around the world. To take just two examples, there are ICCs in Singapore and also in China. They exist as part of those countries’ regular (national) court systems, but they specialise in hearing international commercial cases. Australia doesn’t yet have an ICC. Establishing an Australian ICC has been proposed, though the idea is also controversial for some.

If an Australian ICC was to be established, in the future, what could it learn from arbitration?

Potentially, quite a lot: especially given that ICCs aim to attract disputants, and as a result, they might draw inspiration from some of arbitration’s ‘distinctive features’.

One of those features is the power held by parties to select their arbitrators. Of course, you can’t pick your judge in court. However, an ICC can be constituted by judges having a range of international backgrounds and having specialist international expertise. Arbitration is also renowned for its procedural flexibility. An ICC might take a more flexible approach to the taking of evidence, and the process of proving foreign law. ICCs may similarly allow for representation by foreign lawyers. An ICC might further learn from arbitration’s capacity to offer more limited discovery than traditional litigation.

As courts, however, ICCs also bring with them their own benefits. They include, for example, the judiciary’s contribution to the ongoing development of commercial law via the doctrine of precedent, and its ability to offer greater and more directive case management features designed to promote proportionality in the pursuit of civil justice. ICCs can also more readily act beyond the parties’ autonomy, such as by joining third parties to proceedings where beneficial and expedient to do so.

Though historically thought of as rivals, arbitration and the courts have always learned from each other. The genesis of ICCs merely makes this process explicit, shedding light on the ongoing and conscious hybridisation of dispute resolution procedures in commercial dispute resolution. It is this potential for greater responsiveness to the needs of commercial disputants, premised upon procedural innovation in the pursuit of just and efficient outcomes, that underpins the potential of a future Australian International Commercial Court.

– – –

[1] Jennifer Kirby, ‘Efficiency in International Arbitration: Whose Duty Is It?’ (2015) 32(6) Journal of International Arbitration 689, 690.

The authors are members of the Monash University Faculty of Law’s Commercial Disputes Group.

Are we nearly there yet? Reflections on the HDR journey

Posted on 14/06/2018 by Dr John Woodward

As we move towards the middle of this my fourth year of PhD candidature, my thesis submission date is drawing rapidly nigh and the anxiety level is elevated a notch, I thought it might be useful to reflect on the journey thus far and to share with you some of the highlights and low points of the journey although, thankfully, of the latter there is little to report.

Image: ‘Child Drawing’ by The Naked Ape, Creative Commons, CC BY-NC-ND 2.0

I think it is fair to say that the journey may never have commenced at all, had it not been for the blindingly obvious conclusion after thirty years of legal practice as a commercial litigator, that the solutions being offered to litigants by the traditional justice system were somewhat less than ideal. Clients were complaining that the court could not offer the relief they were seeking, the costs of “winning” were prohibitively high and most of the cases in which I was instructed were resolved on some basis well before they reached a hearing. Try as I might, I could never quite be convinced of the claim that the public interest in having the courts “…explicate and give force to the values embodied in authoritative texts…” (1) or otherwise declare the law for the benefit of the public good, had any real relevance to some of the mundane and routine cases in which I was involved. In fact, of all of the hundreds of cases in which I acted throughout my career as a lawyer, only two found their way into the law reports.

And so it was that, armed with the vision of a broader view of justice and a transcript of my Masters in Dispute Resolution, I arrived at the academy with a request to be admitted to the RHD program. It is worth noting at this juncture that the welcoming and supportive culture of the academic community generally and my academic supervisors especially, has been nothing short of outstanding and I believe it is a tribute to their encouragement and support that I have persevered this far.

I am happy to say that my first year of candidature was both vigorous and productive. Together with my colleague Armin Alimardani I represented the Faculty of Law at UNSW in the Three Minute Thesis competition where we both performed without distinction but were grateful for the experience. The formulation of an appropriate research question, the preparation of a proposal and writing of a literature review occupied most of the year and did much to clear my thoughts about the path that lay ahead. I was delighted to discover that others had trodden the path I sought to travel and there was a rich and abundant supply of research evidence in the general dispute resolution field. The filtering of this material was as fascinating as it was challenging and the effort was well rewarded because it placed me in an excellent position to approach the confirmation examination with confidence and to receive and consider the reviewers’ comments constructively. Other features of the year included attendance at a compulsory course on research methodology and the acceptance for publication of the first of three articles which have appeared in the Australasian Alternative Dispute Resolution Journal.

The clear highlight of 2015 was the opportunity of presenting a paper at the 4th ADRN Roundtable at UNSW in September, an event which I shall long remember because it was there that I was introduced to the members of this research network, a group of like-minded thinkers, researchers and teachers who share my passion for a broader framework of justice. I have attended each of our roundtables since and hope to do so again this year. It is, I think, an important and integral part of the aspiring academic’s learning experience to have the opportunity to present his or her research at as many roundtables and conferences as possible. It provides an opportunity for practice at presenting, an opportunity to review the work of others and to receive comments and review of one’s own work in a supportive and non-threatening environment. It also encourages collaboration and the formulation of collaborative networks such as the ADRRN. For the RHD candidate, it also provides a much needed point of human contact with other researchers. The road to a PhD can be a lonely journey at times and it is a good thing to meet with others professionally and socially to exchange thoughts and ideas about what is happening in the research discipline. For me, the ADRRN roundtable is an end-of-year reward for diligence throughout the past year.

The research question with which I am concerned is how lawyers are engaging with court-connected mediation. In her optimistically titled work, The New Lawyer: How settlement is transforming the practice of law (2) Julie Macfarlane explores the reasons why lawyers have traditionally acted in an adversarial manner in response to conflict and dispute. She says that it is a cultural issue and that we (lawyers) behave as we do because of our “legal professional culture.” She posits the existence of three core elements of legal professional culture which guide our thinking and steer us towards adversarial competition whenever a dispute arises. Those elements are, firstly, the default to a rights based system of justice, secondly a belief in justice as process and thirdly a belief in the superiority of the lawyer as expert. Using a data collection instrument designed to capture the presence of those elements in research respondents and with ethics approval sought and obtained, I set off in the Spring of 2016 to drive to various country centres throughout New South Wales to speak to lawyers about their views on court-connected mediation. I spoke with each respondent for an hour, recorded the interviews with their permission on my smartphone and transcribed the interviews later. (For anyone who may be contemplating this as a strategy for the future, be warned: the transcription time to interview time is 6:1 so for every hour of interview you can expect to spend six hours transcribing).

The verdict is in. The qualitative data has been analysed and the interviews studied. In many respects the results are not surprising. They align with other research done in other places and at other times. The good news is that, even over the past five years or so, we lawyers have made some progress in embracing court-connected mediation although at times with a begrudging acceptance and a resignation that it is here to stay and we may as well get used to it. Particular themes emerged and are dealt with in my thesis. They include, notably, the much vexed issue of disputant participation and the issue of confidentiality. Understanding of how lawyers grapple with these issues is of particular interest to me because they go a long way to explaining what Olivia Rundle calls “the dilemma of court-connected mediation.” Other themes which emerged from the data were the inclusion in mediation narrative of non-legal material and the question of whether, in court-connected mediation, mediators should be facilitative or directive. A better understanding of these issues will give lawyers and their clients a better understanding of mediation and a more satisfying mediation experience.

So, as I turn into the straight for the final run home to what I hope will be a successful conclusion, I am sometimes reminded of family holidays and long car journeys and colouring books when my children would ask: “Are we nearly there yet?” and their mother would patiently reply: “Nearly there. Just a little while to go. Just keep drawing in your book. I’m sure you can make it a little better.”

(1) O. Fiss Against Settlement 93 Yale LJ 1073 1983-1984 at p 1085

(2) J. Macfarlane The New Lawyer: How settlement is transforming the practice of law (Vancouver UBC Press 2008)

From theory to collaborative practice

Posted on 12/05/2018 by Sue Armstrong PhD

hands

I was a legal academic for twenty years: teaching, researching and writing about family law and family mediation. I have always sought to integrate theory with practice, and to inform my teaching and research with professional experience and current innovation. So, in addition to being a lawyer, I have trained and practised as a mediator, a family dispute resolution practitioner, a conflict coach and an interdisciplinary collaborative practice coach.

Interdisciplinary collaborative practice training

I thought I understood the collaborative framework and philosophy, but interdisciplinary collaborative practice training helped me better appreciate the rationale, the nuances of the process, the significance of teamwork and presence, and the value-add and roles of legal and non-legal professionals in this approach to dispute resolution. It sparked a strong interest to enrich my professional practice to include this burgeoning and important speciality. It made me keen to develop the artistry required of an effective collaborative practitioner.

At the core of collaborative practice is commitment to enhance party self-determination through structured and staged multi-professional support and advice. To this foundational mediation premise, collaborative practice applies current brain science to understand how separation and divorce are experienced as trauma. This science affirms that in empathising with people who are in acute stress response, professionals walk alongside them, reduce the energy taken up by their limbic system, support them to mirror empathic behaviour and create space for the neocortex to work more effectively.

This is critical because it assists people to manage their anxiety, creates calm, enhances self-awareness and promotes the capacity for active listening. It ultimately supports considered reflection and greater capacity for understanding themself, hearing their ex partner and making informed choices.

Coaching in the five way process

One of the more recent collaborative developments is the five-way collaborative process in which in a coach is an independent and impartial facilitator and steward of the collaborative process. A coach may assess the dispute and parties for suitability, and helps the lawyers and parties to make efficient use of the process.

Coaches often manage the overall process, frame the agenda and minute meetings, as well as assist parties to prepare for the meetings and to communicate effectively. They may meet jointly or separately with each party between five-way meetings to clarify party goals, assist parties to develop strategies to regulate their emotional state, facilitate feedback from child consultants, foster parental alliance, and help the family to transition constructively through the separation.

Coaches may be mental health professionals, but in Australia they are also frequently accredited Family Dispute Resolution Practitioners, bringing mediation expertise and authority to issue family court certificates should agreement not be reached. If appropriately trained, coaches may also bring the power of empathy to assist parties to self-regulate and to suport their capacity for empathic listening.

Coaches don’t need to be mental health professionals to do this, but do need to be aware of their professional boundaries, and to refer parties to seek psychological support or counselling if needed. The value of coaches in collaborative practice is their impartiality and their capacity to support interest-based negotiation, creatively problem solve, manage the meeting and between-meeting processes and keep the collaborative process on track.

Interdisciplinarity

Interdisciplinarity is one of the key features and advantages of contemporary collaborative practice. The support provided to parties by a multi-professional team can be invaluable and ensure informed decisions are made which have a whole-of-life and whole-of-family perspective.

A collaboratively trained financial neutral or forensic accountant can not only provide advice and options to distribute assets to meet immediate needs and just outcomes, but can do this within a longer-term perspective to address complex structuring issues, save tax and super and optimise parties’ future financial viability. Children’s specialists can also assist parents to hear their child’s experience of the separation and clarify what is in the child’s best interests.

Opportunities for lawyers

This interdisciplinarity, and especially the coach role, has the potential to decentre lawyers. But I think it actually frees lawyers to employ their expertise and advocacy to help parties achieve holistic outcomes. Whilst collaborative practice is likely to be attractive to lawyers already committed to non-adversarial and client-centred lawyering, it requires that lawyers are collaboratively trained so that they fully appreciate what teamwork requires, and what commitment to empower people to resolve their disputes jointly and collaboratively means in practice.

Because of its flexibility, collaborative practice also provides lawyers with further opportunities to reframe the process in ways consistent with protecting their client’s legal rights as well as problem solving about their needs and interests. Thus collaborative law has the potential for lawyers to contribute to reshaping the paradigms of legal practice and appropriate dispute resolution.

For many family lawyers this is their preferred form of practice. Family law clients report the benefits of collaborative practice in easing the separation transition and supporting post separation family life. One commented ‘my children are happy that their parents went through a non-adversarial process and they had a chance to voice their opinions to the Child Consultant and Coach’. Another reported ‘my husband and I decided we would try the process to see if we could get through our divorce amicably. Overall this was extremely successful and I would definitely suggest that anyone going through a divorce consider the collaborative route – it is quicker, it is cheaper and it encourages the couple to remain civil despite the tense emotions that inevitably come into play during a divorce.’

Collaborative practice has enormous potential to provide multi-professional support to transition people through separation and help them make informed, child-centred and life affirming choices. Further information is available through state-wide collaborative professional networks and collaborative practice training organisations.

Also published in Collaborative Professionals (NSW) Inc Newsletter, 20 April 2018 and on Armstrongmediation.com.au blog on 11 May 2018.

Call for Papers for a Special Edition Australian Journal of Clinical Education

Posted on 16/04/2018 by Associate Professor Bobette Wolski

The Australian Journal of Clinical Education (AJCE) is an open access double blind peer reviewed journal devoted to issues of practice and innovation in clinical education in the disciplines of Law and Health Professional Education.

SPECIAL ISSUE: TEACHING AND LEARNING OF DISPUTE RESOLUTION IN HIGHER EDUCATION

Guest editor: Dr Bobette Wolski

Photo Credit: Russ Seidel, Colour and Shape, Creative Commons

INTRODUCTION

An understanding of dispute resolution theory and the development of dispute resolution skills are now considered to be a crucial part of a balanced education in a wide variety of disciplines and programs. It is generally accepted that learning about dispute resolution is best facilitated using simulations, roleplays and clinical experiences. It is through such learning experiences that our students gain, amongst other things, competency in communication skills, an understanding of human
emotions and needs, and an understanding of and appreciation for the variety of ways in which disputes may be resolved (or at least, managed). However, while much has been written about the teaching of dispute resolution, there are still many questions that remain unanswered, and challenges to be overcome.

CALL FOR PAPERS

The AJCE invites contributions for a special issue of the journal which will focus on the teaching and learning of dispute resolution in higher education. The issue will be edited by Dr Bobette Wolski (Guest Editor) and Dr Francina Cantatore (Editor-in-Chief).

The Editors invite submissions of articles for review and publication in Volume 4, 2018 from academics, researchers, practitioners and students on all matters relating to the learning and teaching of dispute resolution in higher education in law and health care in Australia and globally.
Submissions could address, but would not be limited to, topics such as:
1. Effective ways in which to integrate dispute resolution education in the curriculum or program of learning
2. The impact of emergent technologies on the learning and teaching of dispute resolution
3. Teaching and learning of dispute resolution to make a positive impact on student well-being
4. How to prepare students for the increasing importance of dispute resolution in the global environment
5. Innovations in teaching and learning of dispute resolution
6. Tried and true: teaching methodologies that have been effective in teaching dispute
resolution theory and practice
7. Teaching for interdisciplinary understanding and practice of dispute resolution
8. Dispute resolution and access to justice
9. Can we teach students to act ethically in dispute resolution and if so, how and why?
10. Any other topics relevant to the teaching and learning of dispute resolution.

Please submit an abstract of your paper (abstracts should be no longer than 300 words in length) by 31 May 2018. In the first instance, abstracts should be forwarded to Bobette Wolski by email addressed to: bwolski@bond.edu.au. Please include your position description, organisation and contact details in the abstracts. Authors will then be invited to submit full texts of papers to the journal website.

The submission deadline for full papers is 31 August 2018.

It is anticipated that the special issue, which will be published as Volume 4, 2018, will be published late this year or early next year.
The style guideline is available here.
For more information visit here.

On the passing of Frank Sander: A critical, grateful view from the Antipodes

Posted on 05/03/2018 by Associate Professor Becky Batagol

Frank Sander, dispute resolution visionary and hero, recently died, aged 91.

I thought it would be worthwhile exploring some of Sander’s achievements and impact from an Australian civil justice perspective. In particular, I will consider the relevance of Sander’s multi-door court house idea to Australia today.

For many years, I have been teaching Non-Adversarial Justice to undergraduate law students at Monash University. The wonderful, far-ranging discussions we have in those classes have given me the chance to reflect on the impact of Sander’s work here in Melbourne, Australia.

Sander was a professor of law and dispute resolution at Harvard University in the USA. He is associated with developing the ‘multi-door courthouse‘ idea: that a single court could triage the civil matters that came before it and provide a range of dispute resolution services (both litigious and settlement-based) depending on what is needed in each case. A multi-door courthouse is a dispute resolution centre where a grievant, with the help of a screening officer at the court, is directed to an appropriate process or series of processes. This approach is underpinned by the view that court costs and delay are increased by ill-matched disputes and processes.

In many ways the multi-door courthouse is the civil equivalent of the criminal problem-oriented court, which aims to reduce re-offending by addressing the underlying causes of criminal behaviour.

Multi-door courthouse: right for Australia? image Credit: Dan Boss, Exit at the Acropolis Museum, Creative Commons

Sander is also credited with developing the now ubiquitous idea of fitting the forum to the fuss (that each matter should use an appropriate dispute resolution process). In Australia in 2018, this an uncontroversial goal, which, unfortunately, is still a long way from reality in the civil justice system.

To develop ideas that become pervasive and which define a field has a something to do with luck (timing, place, race, gender etc). But not every lucky person has clear thinking, vision and the ability to convince others. Sander was clearly an ideas man and we listened. The impact of his thinking on civil justice systems and court practice is significant, even in far-away places such as Australia.

Sander gave a famous speech in which he first set out his ideas on the civil justice system at the 1976 Pound conference held in St Paul, Minnesota and organised by then Chief Justice of the Supreme Court, Warren Burger. Many, including Jeffrey Stempel regard this conference as the genesis of the modern ADR and court reform movement. Stempel argues that this conference was notable in its criticism of the litigation process, its promotion of ADR by its “all star cast” including the cream of the American court and legal establishment as well is the publishing of its proceedings in West’s Federal Rules Decisions, guaranteeing wide exposure of the conference’s pro-ADR sentiments, especially to the nation’s federal judges. The proceedings of the Pound Conference can be found in ‘National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice’ (Apr. 7-9, 1976) in 70 F.R.D. 79 (1976). The 1976 conference has, of course, spawned the contemporary Global Pound conferences.

Sander’s speech was at the heart of what the conference acheived. According to Diane Levin, at the 1976 Pound Conference, Sander

reminded conference participants of the limitations of traditional litigation with its “use of a third party with coercive power, the usually ‘win or lose’ nature of the decision, and the tendency of the decision to focus narrowly on the immediate matter in issue as distinguished from a concern with the underlying relationship between the parties.” He urged conference participants to envision alternatives, a “rich variety of different processes, which, I would submit, singly or in combination, may provide far more ‘effective’ conflict resolution.” And he reminded them of “the central quality of mediation”, namely “its capacity to reorient the parties toward each other, not by imposing rules on them, but by helping them to achieve a new and shared perception of their relationship, a perception that will redirect their attitudes and dispositions toward one another.”

This is a call for the integration of ‘ADR’ with the ordinary everyday business of civil courts. (There is a very readable exploration of the origins of Sander’s Pound paper here).

More than 40 years later, Sander’s call has largely been answered. We know that settlement has always been part of civil litigation (thanks Marc Galanter for giving us the term ‘litigotitation’). But since Sander gave that speech, various forms of ADR, especially mediation and arbitration, have become part of standard court practice in most jurisdictions. For example, the Supreme Court of NSW offers both mediation and arbitration for civil matters under Parts 4 and 5 of the Civil Procedure Act 2005 (NSW). Referral to ADR can be mandatory in most Australian courts. Court-connected ADR services in Australia are provided by in-house staff or by external service providers.

However, most Australian courts could not be called multi-door courthouses. One reason why, is that formalised dispute resolution screening processes are not in place in most Australian courts. (The NSW Land and Environment Court is a clear exception).

What I think Sander didn’t quite get it right is that his focus was largely on the courts. To my mind, the locus of conflict and dispute resolution is not at the pointy court-end of the dispute resolution pyramid, but the heavier bottom-part. Most people who have a ‘legal problem’ don’t go near a court but choose or are forced to use other methods of dealing with their matter. These methods include direct action such as physical retaliation, seizure of property or removal of offending objects, informal negotiation or exit and avoidance (‘lumping’ the problem). That’s certainly what goes on in my house!

Court-based triage and assessment of problems is going to offer very little to most people who never even conceive of their ‘problems’ as court-worthy nor have the funds to litigate. When researchers measure ADR use, there is always very low awareness of ADR processes in the community and low uptake and use of formal ADR services. Even ADR services are not the only answer.

The multi-door courthouse doesn’t reflect more recent government efforts to encourage efficiency in the civil justice system in Australia and the UK. Pre-action protocols/procedures have been implemented widely in England and Wales following the Lord Woolf Report and more sparingly (but significantly) in Australia. Pre-action procedures encourage early settlement of disputes, full disclosure of information between parties and, where the matter cant be resolved, the narrowing of issues in dispute, but all before proceedings have commenced. Pre-action procedures are important because they force the location of ADR services away from the courts and towards pre-trial services offered by non-court providers or undertaken informally. Tania Sourdin argues that pre-action procedures are a significant shift away from Sander’s multi-door courthouse and towards a “more modern multi-option dispute resolution model.”

I would argue that they key idea behind Sander’s multi-door courthouse idea, matching the forum to the fuss, should and does still exist as a guiding principle of Australian civil justice systems. While the location of dispute resolution activity has shifted away from the courts (in Australia at least) Sander’s ideas have shaped the civil justice landscape of our country.

Thank you, Frank.

Aspects of this post are based upon ‘Chapter 7: ADR: Appropriate or Alternative Dispute Resolution’ in King, Freiberg Batagol & Hyams Non-Adversarial Justice (2nd ed, 2014).

Don’t fear robo-justice. Algorithms could help more people access legal advice

Posted on 31/10/2017 by Associate Professor Becky Batagol

John Zeleznikow, Victoria University

This post by ADR Research Network member and Professor John Zeleznikow appeared in academic commentary site The Conversation on 23 October 2017.

File 20171018 32345 1tsa5e8.jpg?ixlib=rb 1.1 — Should we be afraid of robo-justice?
Maksim Kabakou/Shutterstock

You may have heard that algorithms will take over the world. But how are they operating right now? We take a look in our series on Algorithms at Work.

Algorithms have a role to play in supporting but not replacing the role of lawyers.

Around 15 years ago, my team and I created an automated tool that helped determine eligibility for legal aid. Known as GetAid, we built it for Victoria Legal Aid (VLA), which helps people with legal problems to find representation. At that time, the task of determining who could access its services chewed up a significant amount of VLA’s operating budget.

After passing a financial test, applicants also needed to pass a merit test: would their case have a reasonable chance of being accepted by a court? GetAid provided advice about both stages using decision trees and machine learning.

It never came online for applicants. But all these years later, the idea of using tools such as GetAid in the legal system is being taken seriously. Humans now feel far more comfortable using software to assist with, and even make, decisions. There are two major reasons for this change:

Efficiency: the legal community has moved away from charging clients in six-minute blocks and instead has become concerned with providing economical advice.
Acceptance of the internet: legal professionals finally acknowledge that the internet can be a safe way of conducting transactions and can be used to provide important advice and to collect data.

This is a good development. Intelligent decision support systems can help streamline the legal system and provide useful advice to those who cannot afford professional assistance.

Intelligent legal decision support systems

While robots are unlikely to replace judges, automated tools are being developed to support legal decision making. In fact, they could help support access to justice in areas such as divorce, owners corporation disputes and small value contracts.

In cases where litigants cannot afford the assistance of lawyers or choose to appear in court unrepresented, systems have been developed that can advise about the potential outcome of their dispute. This helps them have reasonable expectations and make acceptable arguments.

Our Split-Up software, for example, helps users understand how Australian Family Court judges distribute marital property after a divorce.

The innovative part of the process is not the computer algorithm, but dividing the process into 94 arguments, including issues such as the contributions of the wife relative to the husband; the future needs of the wife relative to the husband; and the marriage’s level of wealth.

Using a form of statistical machine learning known as a neural network, it examines the strength of the weighting factors – contributions, needs and level of wealth – to determine an answer about the possible percentage split.

Other platforms follow a similar model. Developed by the Dutch Legal Aid Board, the Rechtwijzer dispute resolution platform allows people who are separating to answer questions that ultimately guide them to information relevant to their family situation.

Another major use of intelligent online dispute resolution is the British Columbia Civil Resolution System. It helps people affordably resolve small claims disputes of C$5,000 and under, as well as strata property conflicts.

Its initiators say that one of the common misconceptions about the system is that it offers a form of “robojustice” – a future where “disputes are decided by algorithm”.

Instead, they argue the Civil Resolution Tribunal is human-driven:

From the experts who share their knowledge through the Solution Explorer, to the dispute resolution professionals serving as facilitators and adjudicators, the CRT rests on human knowledge, skills and judgement.

Concerns about the use of robo-justice

Twenty years after we first began constructing intelligent legal decision support systems, the underlying algorithms are not much smarter, but developments in computer hardware mean machines can now search larger databases far quicker.

Critics are concerned that the use of machine learning in the legal system will worsen biases against minorities, or deepen the divide between those who can afford quality legal assistance and those who cannot.

There is no doubt that algorithms will continue to perform existing biases against vulnerable groups, but this is because the algorithms are largely copying and amplifying the decision-making trends embedded in the legal system.

In reality, there is already a class divide in legal access – those who can afford high quality legal professionals will always have an advantage. The development of intelligent support systems can partially redress this power imbalance by providing users with important legal advice that was previously unavailable to them.

There will always be a need for judges with advanced legal expertise to deal with situations that fall outside the norm. Artificial intelligence relies upon learning from prior experience and outcomes, and should not be used to make decisions about the facts of a case.

Ultimately, to pursue “real justice”, we need to change the law. In the meantime, robots can help with the smaller stuff.

John Zeleznikow, Professor of Information Systems; Research Associate, Institute of Sport, Exercise and Active Living, Victoria University

This article was originally published on The Conversation. Read the original article.

ADR and the Importance of Data

Posted on 19/12/2014 by Mr James Duffy

A recent post by Dr Becky Batagol had me thinking about the importance of good data collection in the field of ADR. ADR proponents make many claims about the benefits of ADR. We also know that most dispute resolution processes occur behind closed doors, which challenges our ability to make sweeping statements about “what goes on” in ADR processes. Good data, collected from third party facilitators, disputing parties and non participant observers, helps us to make strong claims about the efficacy of ADR forums.

Such data may help us to more clearly consider questions that we believe we already know the answer to. Do ADR processes really preserve relationships when compared to litigation? Are the values of self-determination and autonomy actively promoted in ADR? Do parties focus more on their interests, rather than their positions in ADR? Are remedies achieved in ADR more flexible and varied, compared to court adjudication?

ADR researchers also need to consider methodological approaches that allow us to say things like:

ADR is cheaper than litigation.
ADR is quicker than litigation.
Settlement rates in ADR are high (compared to what?)
Party satisfaction with ADR processes is high.

When I think about these claims, I think about the (initial) words of Thomas Jefferson and the American Declaration of Independence… “We hold these truths to be sacred and undeniable”. I think good data allows us to cast sunlight on many of ADR’s claims. It is important that we do shine light on these claims, so that users and providers of ADR services understand what ADR can and cannot sensibly lay claim to. Becky made reference in her earlier post to data that would be useful to have:

settlement rates
factors that may influence settlement rates, such as referral stage
what happens when disputes are not settled at ADR
participant satisfaction with ADR and perceptions of fairness, the time and costs expended by participants and service providers.

For members of the ADR research network and readers of this blog – what other data do you think we should be trying to collect??

James

Wishin’ and Hopin’: ADR Policy in Victoria

Posted on 16/12/2014 by Associate Professor Becky Batagol

The past couple of years have seen dispute resolution increasingly politicised in Australia, as we have explained elsewhere. The Victorian election, held on 29 November this year and which resulted in a change of government, is no exception.

The new Australian Labor Party (ALP) government has made an explicit commitment to increasing use of ADR in Victoria. The government’s pre-election platform states (at p 67-8):

Where disputes occur, Government should provide Victorians with options to resolve them at the earliest stage to avoid the cost, stress and delay that is often a feature of traditional court proceedings.

Specific policies promised in relation to ADR include increased promotion of mediation and ramping up the dispute resolution options at VCAT, the Victorian Civil and Administrative Tribunal, so that it is restored as “a simple, low cost jurisdiction that assists parties seeking speedy resolution of their matters in a less formal and intimidating environment.”

The government has also committed in its platform to providing increased access to justice for vulnerable Victorians (p.67). It has promised an inquiry into access to justice in Victoria including into availability and funding of Community Legal Centres (CLCs). Specific measures pledged to improve access to justice include increased funding for Victoria Legal Aid, addressing “the clogging of the court system”, fixing the problems with funding cuts at VCAT and encouraging more lawyers to work at Community Legal Centres through providing incentives such as scholarships and HECS rebates.

Related promises in the ALP platform include mainstreaming into the broader court system some of the successes of the problem-oriented courts set up in Victoria over the past decade (p.64) so that offenders are better connected to the services they need to address their offending.

While the previous government was in power Victoria from 2010-14, ADR policy moved slowly at best. The Attorney-General for that government, Robert Clark, had publicly expressed his commitment to ADR, stating to the LEADR Kongress in September last year: “The State government is a strong supporter of ADR and the role it can play in bringing about just outcomes in a timely and cost-effective manner.” However the record of the coalition government supporting ADR did not match these words when, in 2011, it repealed legislation containing broad-scale pre-action procedures mandating participation in ADR for all civil disputes before the courts. In passing these reforms, the Attorney-General stated in Hansard on 10 Feb 2011 (at p 307):

It is common sense and good practice for parties to attempt to resolve their dispute without resorting to litigation if there is a reasonable prospect of success in such an attempt. However, the government’s view, and the view of many practitioners, is that to seek to compel parties to do so through these heavy-handed provisions will simply add to the complexity, expense and delay of bringing legal proceedings, because of the need to comply with these mandatory requirements, whether or not they are likely to be useful in any particular case.

It is regrettable that the legislation was repealed without any evidence base of the effectiveness of the reforms or independent testing of the Attorney’s claims.

It remains to be seen whether the deeds of this new Victorian government match its words. The fact that ADR and access to justice were explicitly part of the policy platform prior to the election is promising. The new Attorney-General, Martin Pakula, has big shoes to fill, his Labor predecessor being Australia’s most reformist AG, Rob Hulls (Lionel Murphy having fewer years in the job).

While we wait to know more from the government in Victoria, here’s my personal wish-list for the Attorney-General to tackle in relation to dispute resolution/ ADR policy reform in Victoria

A public review of the quality and effectiveness of ADR processes in Victoria. ADR is offered in every Victorian court and by many other state providers. But we know little about the quality of services offered (including settlement rates, satisfaction, inter-professional collaboration around the process and the fairness of outcomes). The Productivity Commission recently called for all State and Territory governments to conduct an independent public review of the effectiveness and efficiency of dispute resolution mechanisms within their jurisdiction every 5 years, starting by 30 June 2016 (p.298). Such a review would be a good start for a government intent on making an impact where there is already significant state outlay on ADR services and efficient justice investment is an imperative.
Mandating public reporting on standard ADR data by all Victorian ADR service providers (including courts and tribunals, Community Legal Centres, Victoria Legal Aid and other dispute resolution services such as the Dispute Settlement Centre of Victoria, or DSCV). Higher quality and consistent data collection would enable us to understand whether existing ADR services meet their aims and whether gaps in service provision exist. Higher quality data means that money can be efficiently allocated where there is highest need. The public availability of such data is crucial to ensure transparency in provision of dispute resolution services when ADR lacks the many of the fairness protections available in the public court system. The absence of adequate dispute resolution data was noted by the Victorian Law Reform Commission (VLRC) in its 2008 report on Victoria’s civil justice system in relation to the effectiveness of court-ordered mediation in Victoria (at pp 278-83). In 2009, when the Victorian Parliament’s Law Reform Committee recommended that

At a minimum, the Committee believes that there is a need for consistent data collection across ADR service providers about:

-settlement rates

-factors that may influence settlement rates, such as referral stage

-what happens when disputes are not settled at ADR

-participant satisfaction with ADR and perceptions of fairness the time and costs expended by participants and service providers. (pp. 58–59)
Widespread use of family group conferences for child protection matters usually commenced in the Children’s Court of Victoria. In 2010, just prior to the State election in that year, the Victorian Law Reform Commission set out a range of options for reform of the processes followed in child protection cases in the Children’s Court of Victoria. One of the options canvassed involved a graduated range of supported, structured
and child-centred agreement-making processes as the principal means of determining child protection application outcomes instead of existing court processes. The Commission noted that most agreements in child protection matters are already the result of informal bargaining between the parties’ lawyers (at para 7.4) and that supported and child-centered processes such as family group conferences would better enable agreements that are in the best interests of the children involved and which stick in the longer term. These options for reform were never implemented following the 2010 election and may yet help to ensure that scarce resources already invested in Victoria’s child protection system are directed towards assisting vulnerable children have care arrangements that meet their best interests.
Better connecting and integrating state-funded family violence and police services with federally-funded Family Dispute Resolution (FDR) services so as to better protect those experiencing family violence. In 2010 the Australian and NSW Law Reform Commissions’ joint inquiry into family violence concluded that there was potential for FDR to expeditiously and effectively resolve parenting disputes in cases involving family violence but that there had to be better coordination with State and Territory child protection and family violence systems (at paras 21.12-21.13 and 21.50). The Luke Batty case has clearly demonstrated the need for more effective coordination of state-based family violence and police services and services within the federal family law system. The Victorian government has committed to holding a royal commission into family violence. By committing to work specifically with FDR providers including Family Relationship Centres and Victoria Legal Aid’s Roundtable Dispute Resolution, the Victorian government can help to provide avenues for seamless, safe and supported decision-making following family breakdown for women and children experiencing family violence.

So, that’s my list. What is on your personal wish-list for ADR policy reform in your State or locality?

Becky Batagol would like to disclose that she worked for the Victorian Law Reform Commission on its inquiry into Protection Applications in the Children’s Court of Victoria in 2010.

New edition: Dispute Resolution in Australia: Cases, Commentary and Materials by SPENCER and HARDY

Posted on 11/06/2014 by Dr Samantha Hardy

This third edition of Dispute Resolution in Australia: Cases, Commentary and Materials highlights the consolidation of the process of dispute management and resolution, particularly in the government sector. We are now seeing the full impact of government changes to the handling of civil disputation, with the establishment and fusing of specialist tribunals and commissions. The result of the creation of these extra-judicial bodies has been a reduction in some jurisdictions of matters proceeding to trial. The interesting side-effect of this development is the rise of dispute resolution processes within these specialist tribunals and commissions that seek resolution of disputes in order to avoid hearings.

This new edition brings the law up-to-date and features:

A new chapter on conflict coaching
A re-written chapter on the key elements of arbitral procedures and the common law surrounding arbitral practice featuring the new Uniform Commercial Arbitration Acts
A new chapter on dispute resolution and the criminal law system
A new chapter on dispute resolution and industrial relations.

Dispute Resolution in Australia: Cases, Commentary and Materials, third edition, is an invaluable resource for both students and practitioners, providing practical guidance and analysis in this dynamic area of the law.