Mediation: Australia’s Place in the International Scene (Part 4 of 4)

Posted on 26/10/2024 by Milan A Nitopi

Peter Condliffe PhD
Chair, AMDRAS

This post is the fourth in a four-part series as written by Peter Condliffe and based on his presentation in the Australian Dispute Resolution Association ‘International Mediation Conference’ on 15 August 2024 at Sydney.

Where Does Australia Sit in the International Dispute Resolution Field?

The research conducted for the MSB, referred to above, used several key indicators for establishing a comparison between a number of jurisdictions: Australia, New Zealand, Singapore, Honk Kong, United Kingdom, USA and also against the multi-national International Mediation Institutes system. These indicators were:

Regulation of Mediation
Accreditation Systems
Mediation Style
Specialisations

Let me deal with each of these aspects in turn.

Regulation

What the researchers concluded was that Australia sits approximately “in the middle” of regulatory regimes. They contrast Australia with the Italian legislated system which mandates areas where mediation may be conducted and also with the UK and USA systems where mediation is largely unregulated. Australia, like all of these jurisdictions does have civil procedure rules that promote the use of dispute resolution and dispute resolution processes. However, what is noteworthy about both Australia and New Zealand jurisdictions is that they do legislate for the use of conciliation across a range of conflict areas and for dispute resolution processes in family law matters. In Australia family dispute resolution practitioners (FDRPs) are required to have obtained certain qualifications and be registered to practice in that field. This is contrasted with the situation in Singapore where judges take a proactive approach in managing family disputes where they can appoint anyone to act as mediator as there are no legislative requirements for mediator qualifications. Other jurisdictions, such as the UK and Hong Kong, maintain registers or panels of family mediators, but again without any legislative scheme for the requirements of mediators.

In Australia likewise many conciliation schemes require certain qualifications for practice including mediation (NMAS) accreditation in many instances. Our own review research showed that most conciliators reported that they followed a “mediation” type process.

Accreditation

In reference to accreditation all of the mediator accreditation systems analysed require training (usually a five-day course) with an assessment and application process. There are national mediator accreditation systems in Australia, Hong Kong and Italy. Hong Kong and Italy operate centralised accreditation systems (Hong Kong Mediation Accreditation Association Limited (HKMAAL) and the Italian Ministry of Justice, respectively), while Australia has a decentralised system through Registered Mediator Accreditation Bodies (RMABs). However, in other countries, accreditation systems are generally managed by professional organisations, which each have their own standards. Therefore, the credibility or status of accreditation in these latter countries is organization and often discipline dependent.

Mediation Style

In relation to mediation style there appears to be a consensus among jurisdictions that mediation standards either do not presume a particular style of mediation or presume the facilitative style of mediation. It is clear that the “definition” of mediation in NMAS could be regarded as a facilitative one. However these Standards also allowed for a “blended process” which could involve the giving of advice. They also allowed for conciliation to be recognised as part of a mediators practice. In other words, the Australian system allows for some flexibility in mediation style. This seems to be replicated in other jurisdiction New Zealand and the European Union. There has been a slight change under the new AMDRAS regime where facilitative mediation is preferred as the training model for accreditation and is not defined but rather described. This is coupled with the adoption of a broad-based outline of professional practice called the “four professional domains” which are outlined in detail in Part V of the AMDRAS standards. These provide a much more wholistic description of mediation practice than one limited to a definition.

There were several reasons for this preference for a definition. Like Boulle I find the use of definitions for mediation (and other dispute resolution practices) problematical in that a definition is like a picture of a dancer on a wall. It gives you a static glimpse of something but does not allow for the spontaneity, fluidity and improvisations that a real dancer may go through. I also note that NADRAC, when it provided a comprehensive glossary of dispute resolution terms in 2003, suggested that it is better to describe rather than define such terms. Also, an expert legal drafter that the MSB used to provide advice upon an early draft of the revised standards advised against providing a definition because it could potentially add to liability problems for mediators both in terms of process and outcomes.

The AMDRAS standards provides therefore, in effect, for a range of mediation type practices in acknowledgement that this is how practice is done. My view is that it is generally best to teach a facilitative model in initial mediation training to equip mediators with a wide and inclusive variety of skills but fame in against the reality of actual practice. This realistically reflects the increasing diversity in mediation practice both domestically and internationally.

Specialisations

Regulatory attempts to allow for specialisation seem to be limited globally. In Australia conciliation is historically regarded as distinct from mediation and there is interest in developing it as a specialisation. A report by ADRAC in 2021 showed that over 100 pieces of legislation prescribe conciliation as part of a dispute resolution process. This Report attempted to discern separate definitional and operational domains for conciliation. However, I agree with Professor Laurence Boulle’s 2022 critique that the ADRAC’s attempt to define conciliation so as to differentiate it from mediation is not convincing and instead demonstrates a considerable number of similarities and overlaps. He argues that “…definitionally, practically and professionally…” attempts to differentiate the two “twins”, as he termed the processes, are undermined by the diversity inherent in both. Also, it is my view that attempts by certain groups organisations to promote this differentiation is and will be counterproductive and goes against both practice trends and wider developments internationally. It was notable that the initial research for the review of the standards commissioned by the MSB, demonstrated that most conciliators tend to use the same process as mediators and seek the same CPD activities as mediators. The context of practice is obviously important as most conciliation is conducted under regulatory schemes where they have a legislated right or obligation to ensure compliance with the scheme. This distinction between the two processes does not seem to be as apparent in other jurisdictions outside Australia. Further, it is clear that internationally the trend is to incorporate conciliation within the rubric of mediation.

It is noted that the Singapore Convention, which Australia is a party to, has adopted a more inclusive terminology by formally incorporating a number of processes within the term “mediation.” It is also worth noting that whilst UNCITRAL introduced conciliation rules in 1980 these were amended in 2018 to become the UNCITRAL Model Law on International Commercial Mediation. The UNCITRAL model law offers member and non-member states a regulatory model for adoption, with or without amendment, into their domestic legislation. The change in nomenclature from “conciliation” to “mediation” is not insignificant and reflects the international trends towards the latter. One could also, amongst others, note the EU Mediation Directive on Civil and Commercial Aspects of Mediation. This Directive establishes a regulatory framework within which EU member states are required to address aspects of crossborder civil and commercial mediation law throughout the European Union.

What AMDRAS does now is to allow for the possibility of specialisations where a practitioner is both registered as an accredited mediator and “….has met the criteria of specialist accreditation specified from time to time by the Board.” The AMDRAS Board may act on its own motion, or on application from a relevant organisation or organisations for recognition under AMDRAS of a Specialist Dispute Resolution program which the organisation/s administers. The criteria, including CPD and practice requirements, once set by the Board will be published as an addendum to the Standards. This would provide an avenue for specialisations within the dispute resolution field to seek and apply national standards. It potentially addresses some of the developmental issues occurring in the field and would, for example, allow national recognition of international mediation, online dispute resolution, conciliation, elder mediation and family dispute resolution programs and processes.

As noted, the new AMDRAS provides a broad description, but not a definition, of mediation and dispute resolution which would encompass a variety of processes including conciliation just as the previous NMAS did. Further, it recognizes that mediators practice across a broad spectrum of non-determinative dispute resolution practices using a broad range of methodologies.

Author Biography

Peter is a Barrister, qualified teacher and mediator. He has also been previously employed in several management and human rights roles including with the United Nations. He is an experienced teacher presenting courses in universities and other organizations. His book “Conflict Management: A Practical Guide” (Lexis Nexis, 2019, 6th Ed.) is well known to many dispute resolution practitioners and negotiators with a 7th edition to be published in 2025. He is Chair of the Australian Mediator and Dispute Resolution Accreditation Standards Board (formerly the Mediator Standards Board) and has served as a Director since 2019 holding positions as Secretary and Convenor of the Research and Review Committees. As well he was the initial drafter of mediation courses for the Dispute Resolution Centres of Victoria; Department of Justice (QLD); the Institute of Arbitrators and Mediators (IAMA – now part of the Resolution Institute) and the Victorian Bar. He is the Principal Instructor in the Victorian Bars’ Lawyers Mediation Certificate which is a specialist course for lawyer mediators. He was the founding President of The Victorian Association for Restorative Justice and is Deputy Chair, ADR Committee of the Victorian Bar, Deputy-President, Council of the Ageing (Vic.), and Member, Senior Rights Victoria Advisory Committee.

Mediation: Australia’s Place in the International Scene (Part 3 of 4)

Posted on 19/10/2024 by Milan A Nitopi

Peter Condliffe PhD
Chair, AMDRAS

This post is the third in a four-part series as written by Peter Condliffe and based on his presentation in the Australian Dispute Resolution Association ‘International Mediation Conference’ on 15 August 2024 at Sydney.

The Review

When in 2019 we started the review of the NMAS it was with one eye on international and cultural undercurrents that it may interact with it as noted above. Accordingly, Resolution Resources (RR), the independent contractor employed to do the initial research, provided the Board as part of its contracted wori a document titled, “Situating the Current NMAS Within the Broader Dispute Resolution Field: An International Comparative Analysis NMAS Review 2020- 21.”

When in 2019 we started the review of the NMAS it was with one eye on international and cultural undercurrents that it may interact with it as noted above. Accordingly, Resolution Resources (RR), the independent contractor employed to do the initial research, provided the Board as part of its contracted work a document titled, “Situating the Current NMAS Within the Broader Dispute Resolution Field: An International Comparative Analysis NMAS Review 2020- 21.”

More generally before and through the course of the review it had also become apparent to the Board that there were a number of issues with the system that required addressing including:

How to respond to the emergence of disparate non-determinative dispute resolution practices (NDR) that could possibly benefit from access to an accreditation scheme.
Issues in interpretation of the standards and interaction with public (website based) information.
Constitutional arrangements around MSB membership which seemed to be moribund.
A need for greater MSB oversight of training including the establishment of training objectives and attributes.
The engagement with and involvement of indigenous communities.
The lack of a structure for advancement and recognition of practice experience.
The need for a clearer and accessible complaints mechanism for users of services.
A lack of understanding in some areas of the dispute resolution community about the scope and advantages of a national system of accreditation

The review process involved extensive engagement and conversations with all MSB members, State and Commonwealth courts and tribunals, universities and training organisations, accredited and non-accredited mediators, and various other stakeholders across the dispute resolution community.

RR delivered its final report in the second half of 2022 which included a finding that, whilst the facilitative model of mediation remains a strong foundation, many accredited and nonaccredited mediators step outside of that model in their day-to-day practice. The research highlighted that the practice of mediation has evolved over time and developed a wide reach including to legal systems, workplaces, elder mediation, restorative justice processes and indigenous peacebuilding. It is because of these developments that the Board considered that there was a need to rewrite and further develop the standards to make them more up to date, more flexible and consistent with the perceived needs of those providing and practising in this field.

The research also found that there was a perceived need for greater clarity in the training requirements for accreditation and how, once accredited, mediators could seek further opportunities, if they desired, to seek more advanced levels of accreditation. The trainers engaged in training our mediators perhaps required some more guidance and the Board itself needed to ensure that those doing the training were accredited so that there was both some understanding of and commitment to the standards. Up until this time training as it developed under NMAS, in the sense of who did it and how it was delivered appeared ad hoc and piecemeal. In my view this has been an enduring weakness in the system.

Since the delivery of the research the MSB has spent significant time developing a revised set of national standards recognising these key findings whilst seeking to stay true to the original objects of the MSB. That is, to promote and maintain consistent and quality mediation training, accreditation and practice, primarily for reasons of consumer protection.

The new standards are structured in a way that will provide more guidance to stakeholders and the opportunity for the standards to continue to evolve alongside the practice of “dispute resolution” in Australia. I prefer the words “conflict management” but “dispute resolution” is a term more commonly in use. “Conflict management” is, in my view, a more inclusive term and provides a better framework for practice for the simple reason that while many conflicts cannot be resolved, most can be managed. Further, in many situations the generation or escalation of conflict is both an honourable and worthwhile objective if managed properly. So, while the aim of much conflict management is the resolution of that conflict, it is more realistic (and logical) to accept that this will not always be achievable, or even desirable, in some circumstances. In other words, the term avoids the possible assumption that to be successful or to have a positive outcome the conflict must be resolved.

In late 2023, a draft of the revised standards was published. What followed was an extensive consultation process, including a series of online presentations and Q&A sessions presented by MSB directors. The MSB also received and has since reviewed dozens of written responses from various stakeholders and dispute resolution practitioners as well as members. This feedback led to further amendments to the earlier draft, with the final version released on 1st May 202424. The box below outlines the major changes to the system.

Key Features of AMDRAS

Facilitative mediation remains the foundation for initial training and accreditation but, as before, there is provision to allow accredited mediators to deliver other models.
Mediation is described (but not defined) and four core “Professional Practice Domains” are defined and articulated to give a more rounded overview of what the knowledge and practice base of mediation encompasses. These are Professional Knowledge, Professional Skills, Professional Ethics and Responsibilities and Professional Development. These guide the development of key principles in the standards and through training delivery and continuing professional development.
Initial training has been increased from 38 to 45 hours and ongoing training requirements have been further developed and clarified.
The potential for specialisation have been introduced and it is expected that these specialisations will involve training additional and supplementary to the core training.
Levels of accreditation are introduced, namely Accredited Mediator, Advanced Mediator and Leading Mediator, each with different practice and CPD requirements. Apart from the initial Accredited Mediator level these are voluntary and noncompulsory components of the system.
A code of ethics is included for the first time.
Training providers under AMDRAS will need to be registered.
A model complaints management outline has been provided as an appendix to AMDRAS. This is based on a verified widely used model and intended as a guide to the minimum requirements for such a process.

In April 2024 the Board released a set of “transition rules.” The transitional provisions provided that all training and accreditation bodies would have a period of 12 months to transition from NMAS to AMDRAS. During this time existing RMABs and accredited mediators will be automatically re-registered under the new system with the opportunity to begin training and accrediting to the AMDRAS standards once the revised processes have been reviewed and approved by the Board. The transition period will begin on 1 July 2024 and last until 30 June 2025.

On 1st May 2024 the MSB published a series of guidelines for each of the major stakeholder groups (mediators, accreditation bodies and training providers). The Board, recognises that the transition from NMAS to AMDRAS will likely impact resourcing and requirements of all organisations involved in mediator training and accreditation. To this end the MSB has begun a review of this aspect.

The culmination of the review process and introduction of AMDRAS represents an important evolution of mediator accreditation, training and practice in the Australian dispute resolution landscape. The introduction of the possibility of developing specialisations within a national regulatory framework in an innovative development which will take some time to evolve and develop. Once settled and operating the system will hopefully continue to evolve and be adaptable to the changing requirements of a more diverse and complex environment.

Author Biography

Mediation: Australia’s Place in the International Scene (Part 2 of 4)

Posted on 14/10/2024 by Milan A Nitopi

Peter Condliffe PhD
Chair, AMDRAS

This post is the second in a four-part series as written by Peter Condliffe and based on his presentation in the Australian Dispute Resolution Association ‘International Mediation Conference’ on 15 August 2024 at Sydney.

The Evolution of the Australian Way

The NMAS was a very Australian way of regulating practitioner training, skills development and registration. Since its commencement in 2008 it has, until this recent review, remained virtually static as the mediation field around it has evolved. But even after this review its four central core features of voluntariness and decentralisation, reflexiveness and responsiveness remains.

It relies on voluntary compliance by the accreditation bodies (formerly called Recognised Mediator Accreditation Bodies (RMABs) and now termed Recognised Accreditation Providers) that agree to accredit mediators in accordance with the requisite standard. Involvement in the system is not mandatory and is reliant upon voluntary compliance and membership.

It can be described as an industry based decentralised system where training (both initial and ongoing) as well as registration is conducted by a number of disparate organisations known as Recognised Mediator Accreditation Bodies (RMABs). In many ways it both mirrored and accommodated the Australian federal constitutional system which “spreads” various aspects of governance and administration across multiple representative parliaments and bodies to accommodate the needs of widely disparate but culturally contiguous geographical regions. This decentralized regulatory system is replicated in many parts of the Australian workplace and economy. In part this is a recognition of the vast distances involved but also of the protection of more localised interest groups.

At about the time the NMAS was formed in 2008 Nadja Alexander insightfully described it as a “self-regulatory” approach to regulation embodying reflexive and responsive approaches or theories. These terms she defines as:

“Responsiveness refers to collaboration between government and the group or collective being regulated. Reflexion means that actors have the opportunity to identify issues, reflect upon them and negotiate their own solutions. In their purest form self-regulatory approaches refer to community-based initiatives embracing collaborative, consultative and reflective processes, as distinct from top down policy regulation.”

If one looks at the foundation documents that relate to the formation of the NMAS one can see these core elements being engaged. The role of government seeding grants and reports published by affiliated government bodies associated with a groundswell from industry groups and mediators themselves came together to create the initial framework. It is a regulatory framework that contrasts with more highly centralised regulatory regimes in such disparate places as Hong Kong and Italy (the Hong Kong Mediation Accreditation Association Limited (HKMAAL) and the Italian Ministry of Justice, respectively) which Alexander would probably term a “formal legislative approach”. But it also can be contrasted with more open association market-based systems such as presently operating in the United States of America and the United Kingdom. In many ways it can be seen as a “middling approach” to regulation and compliance.

The provenance of this model went back, at least, to the year 2000 when a government affiliated advisory body known as the National Alternative Dispute Resolution Advisory Council (NADRAC) launched a discussion paper on “The Development of Standards for ADR” which formed the basis for consultation on this issue. This Report stated that:

“NADRAC proposes a framework for the development of standards for ADR, in which responsibility is shared across service providers, practitioners, and government and non-government organisations (Recommendation 1). It proposes the following strategies:

(i) Facilitate the ongoing development of standards at the sector, program and service provider level, in order to improve the quality of ADR practice and to enhance the credibility and capacity of the ADR field.

(ii) Implement particular standards, within a code of practice, in order to educate and protect consumers, and build consumer confidence in ADR processes.”

One can see in these initial proposals the genesis of the decentralised model. In March 2004, NADRAC released a further paper on mediator accreditation, “Who Says You’re a Mediator? Towards a National System for Accrediting Mediators”. The aim of this paper was to obtain information and to stimulate discussion in the lead‐up to a national workshop on mediation standards. Discussion on it was facilitated at the 7th National Mediation Conference in Darwin on 2 July 2004. With the help of a grant from the federal Attorney-General’s Department the Conference established a broad-based Committee to work on implementation and the establishment of the standards. Notably, for the system’s subsequent development this Committee was representative of the various industry sectors involved, reflected the geographic and disciplinary diversity of practitioners and included members who were suitably experienced in both the practice of mediation and its administration.

At a subsequent conference in 2006 the National Mediation Committee was then formed to attempt to move the proposal forward and to assist to draft standards and a system for mediator accreditation. However, this committee was not able to move the proposal forward and no accreditation system was established at this time. It was not until a further grant was obtained in 2007 by the Western Australian Dispute Resolution Association (WADRA) and a further period of consultation and refinement of the draft Standards made that they were finally operationalized at the beginning of 2008. Professor Tania Sourdin, the academic who conducted this second consultation, recommended and cemented in place the establishment of a voluntary industry system under which organisations that met certain criteria could accredit mediators. This has been a cornerstone of the system ever since. With the help of some more funding the National Mediator Accreditation Committee (NMAC) became the Mediator Standards Board in 2010.

In launching the MSB, his Honor Justice Murray Kellam AO, the then Chairman of NADRAC noted that Australia was the only country to have established a national scheme for mediator standards and accreditation and that the NMAS had ‘prompted the biggest transformation to the professional landscape in the history of mediation in Australia by providing an overarching, base level of accreditation for all mediators irrespective of their field of work.’ Whilst government seeding funds to initiate the NMAS had been obtained it was clear from the onset of these developments that the MSB would need to be wholly funded by RMABs and for practical purposes, by mediators seeking accreditation through RMABs. The MSB passed a significant milestone in 2015 when it successfully concluded a process of consultation and minor revision of the NMAS. The introduction of the new AMDRAS system represents the first significant review of the Standards.

Author Biography

Mediation: Australia’s Place in the International Scene (Part 1 of 4)

Posted on 03/10/2024 by Milan A Nitopi

Peter Condliffe PhD
Chair, AMDRAS

This post is the first in a four-part series as written by Peter Condliffe and based on his presentation in the Australian Dispute Resolution Association ‘International Mediation Conference’ on 15 August 2024 at Sydney.

The Australian system appears to be a unique industry-based system which allows for a common accreditation of mediators across a wide spectrum of professional disciplines. Furthermore, it is a decentralised and diverse system allowing for different styles of mediation whilst maintaining robust central standards for both initial and ongoing training. This latter aspect has been given more emphasis in the new AMDRAS system. The decentralisation of the Australian system makes it flexible in allowing for the cohabitation of the dispute resolution space by different species of practitioners and organizations which are widely divergent in their interests and social functions. The regulatory landscape of Australia provides for some legislative intervention in particular categories of disputes and dispute resolution which allows for a strong culture of private practice and referrals alongside a range of government run or funded services. These unique factors have caused a fusion of thought and practice which has positioned Australia as a country where mediation, and dispute resolution more generally, has matured and diversified under the rubric of a common set of core values. The combination of a decentralised system with adherence to a core set of principles has served the Australian community well since 2008 and will continue to do. Importantly, it will also fit more easily into trends identified in the international mediation field.

Background

As Nadja Alexander a Singapore based academic and an expert on comparative Australian and international conflict management systems stated in a recent paper,

“lf the 20th century was the arbitration century then this century, without a doubt, is the mediation century. The need for greater flexibility, diversity and accessibility in dispute resolution has challenged legal and arbitration systems and opened the door to dispute resolution mechanisms that feature co- operative, interest-based approaches to decision-making that can move easily across cultures…”

What Alexander concluded was that mediation as a process was increasingly the “process of choice” in international dispute resolution in the 1990s and, more recently, the legal instruments to regulate it. She argues that the growing internationalisation of mediation has led to a greater appreciation of diverse practice models and the cultural assumptions underpinning them. To her, and others, it is clear that mediation and other dispute resolution processes have both to be understood in both cultural and international contexts. This was something that the Mediator Standards Board (now the AMDRAS Board) also considered when, in 2019 it began to consider changes to the Australian accreditation system. As part of the tender process the contractor was asked to “…include a review of comparative international regulatory dispute resolution systems…”. It was clear that we had to place ourselves both in cultural and international contexts so as to better understand what we were undertaking.

At about the same time as the international context of mediation was changing in the 1990s my own professional practice took me into a number of pivotal experiences that informed how I think about the interaction of conflict management processes, place and culture. The first was my experience in Cambodia in the 1990s as a United Nations Human Right worker and educator. Cambodia, at that time was a society where the rule of law and civil authority were minimal, and it impacted upon the ways in which its members managed conflict. This experience had a significant impact on me and pricked my interest particularly in restorative justice processes but also how conflict is managed in different cultural contexts. There is one incident that was particularly informative and that was to do with the murder of a “witch” in a town called Sisophon in the then wilds of north-west Cambodia. She practised her craft in a nearby village. Unfortunately, the village had experienced some unexpected bad luck, which resulted in several deaths and illnesses. The relatives of the victims blamed the witch. They decided that the best course of action was to kill her. They approached the headman of the village with their plan and he approved. The unfortunate witch was killed.

The police were called in. Rather than arresting the suspects, the police called a meeting of the witch’s aggrieved relatives and the perpetrators. The meeting was held to discuss compensation to the witch’s relatives. This done, the matter was closed. Presumably, the police and the headman both received a share of the proceeds.

No attempt was made to bring the perpetrators of the crime to justice. No formal charges were laid. It was as if the State of Cambodia with its panoply of Western-style laws did not exist. The idea that the State may have an interest in these events was not contemplated or, if it were, it was an interest of very low priority. The very idea of ‘crime’ was different here. These events reminded of similar stories from the medieval Europe.

This was only one of a large number of instances that came to my attention where Cambodian citizenry and officials reached their own solutions to problems and conflicts. The desire to engage in ‘self-help’ or third-party interventions outside the formal legal system was widespread. The killing of “witches” in Cambodia appeared to be common, as I came across a number of prisoners described in the official records as ‘witch killers’.

Unlike our concept of public wrongs, which entitles the State to interfere in the lives of its citizens, the fate of the witch of Sisophon was determined by proto-State concepts of private and communal interests. The definition of crime was not the prerogative of the State but that of the people directly involved and according to their local customs. In Cambodia, even today there is often little understanding of, or perceived need for, a high-level justice system to protect citizens from often authoritarian or fearsome regimes. The rhythm of life beats to a different drum. Conflict and its various manifestations are perceived and dealt with differently in this society than they are others or in our own. In other words the context in which conflict and social wrongs occurs is critical to the form and function of processes engaged to deal with them.

The second major influence upon me was the work of John Paul Lederach whom I first encountered in the 1990s when I began to teach conflict management courses. Lederach argues that understanding conflict requires an understanding of the culture of a group. Lederach interprets culture to mean the shared knowledge schemes created by a set of people for perceiving, interpreting, expressing and responding to social realities around them. By comparing dispute processes in various cultures he provides clear examples of how dispute managers go through similar functions or phases but the form of these may vary widely.

The third was my contact with First Nations approaches to conflict which I began to be involved in as a mediator in the 1990s in Queensland. What I found through this experience was that my presumptions about mediation process and functions needed to be significantly adapted to this different cultural milieu. More recently some research partly funded by the AMDRAS Board and managed by Professor Tania Sourdin of Newcastle University has clearly indicated these differences and the inadequacy of our understanding of them. The key questions this research, and others like it poses, is how do we better understand indigenous systems of conflict management and how can we both adapt to them and engage them. This has been and still is a particular challenge for our national mediation accreditation system. So, what is this Australian accreditation system?

Author Biography

Join the discussion, speak within our ‘Town Hall’

Posted on 27/09/2024 by Milan A Nitopi

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Top Ten Ways to Improve Your Mediation Skills

Posted on 18/07/2024 by Milan A Nitopi

John Lande, JD, PhD
This post is adapted from the Association of Family and Conciliation Courts article published by the University of Missouri School of Law in the Legal Studies Research Paper Series.

Traditional mediation theories are incomplete at best and misleading at worst, providing mystifying descriptions of what mediators actually do. Those theories focus on only a few behaviours during mediation sessions and don’t recognise the many variations of mediators, parties, and cases. This leaves many mediators to ignore these models because they are either confusing or unhelpful.

John Lande uses Real Practice Systems (RPS) theory in his article to identify 10 things that mediators can do to include within their skillset and improve their own practice. This article is adapted from his previous article ‘Helping You Do the Best Mediation You Can‘ published by the University of Missouri School of Law.

Although Lande’s article is directed to practicing mediators, he refers to additional resources in this Indisputably blog which can be used by teachers and trainer in their work, including to prepare and further develop student’s skills in negotiation, mediation, and advocacy.

These 10 things are summarised below, but it is highly encouraged that you to read John Lande’s published article for a complete and comprehensive explanation.

1. Recognise That You Have a Complex Practice System

If you mediate regularly, you have a complex mediation practice system. Mediation is not “just” what you do during mediation sessions when all the participants have convened, you also have unconscious routine procedures and conscious strategies for dealing with recurring challenges that you use before, during, and after mediation sessions.

It is important that you recognise the basis for your system and that have you developed categories of cases, parties, and behaviour patterns that led you to develop your system.

2. Understand Real Practice System Theory

In this 20-minute video, John Lande explains Real Practice Theory (‘RPS’) and how can improve your mediation practice system. It is applicable in every type of case and at every stage of practice, from novice to mid-career to senior mediator.

3. See Illustrations of Practice Systems in Experienced Mediators

Read John Lande’s article ‘Ten Real Mediation Systems‘ which illustrates the account of ten experienced mediators who identify factors affecting their mediation practice systems and includes links to a detailed account of their systems.

4. Complete a Self-Assessment Questionnaire to Get an Overall Understanding of Your Practice System

This 18-question self-assessment worksheet is designed to help you recognise basic elements of your practice system, prompting you to reflect on your background, motivations, mediation practice, common patterns in your cases, and your procedures.

5. Understand and Use Real Practice System Menu of Mediation Checklists

Read John Lande’s article ‘Real Practice Systems Project Menu of Mediation Checklists‘ which is a detailed menu of checklists for mediators. It includes mediators’ actions before, during, and after mediation sessions as well as items about information to provide on websites, compliance with ethical requirements, and reflection and improvement of mediation techniques.

In another article, ‘Practitioners Tell Why Real Practice System Checklists Are So Useful‘, Lande uses the descriptions of fourteen current and former practitioners to explain how these checklists can help you to carefully design your unique practice system.

6. Develop Your Own General Mediation Checklist

By using the above Real Practice Systems (RPS) checklists, you can consciously develop your own general checklist based on the typical cases and parties in your practice, the procedures you find useful. This checklist is quite versatile, enabling you to choose items which can be modified to suit your needs. But the RPS checklists cannot be exhaustive, so you should add any other items that are relevant to your practice and remove any which are not.

A mediators’ checklists necessarily vary based on many factors including the subject matter, complexity, typical legal issues, participation of attorneys, and amount of time before mediation sessions, among others. As a result, some mediators’ general checklists are longer and more complex than others.

7. Customise Your General Mediation Checklist for Each Case

Before each mediation session, review your general mediation checklist and consider any modifications you might make based on what you know about that particular case you are about to mediate. This can ensure that you are better prepared and equipped with a checklist that will be most useful to you during that mediation.

8. Read Articles in the Real Practice System Annotated Bibliography

To develop a deeper understanding of practice systems generally as well as your own practice system, you should read Lande’s ‘Real Practice Systems Project Annotated Bibliography‘ which organises several publications concerning various topics, including:

Overview of Real Practice System theory
Critiques of traditional dispute resolution theories
Promotion of party decision-making
Litigation interest and risk assessment
Preparation for mediation sessions
Technology systems

9. Participate in an Ongoing Educational Practice Group

It is important to learn from each other as well as give and receive feedback to and from other mediators. This can be done by participating in practice groups.

Although practice groups vary in size, Lande suggests that between 5 and 8 people is optimal. A fixed membership with a commitment to participate for an extended period of time (such as at least 6 to 12 months) is beneficial to allow members to feel comfortable sharing sensitive experiences with each other.

Lande also provides numerous considerations before commencing or joining a practice group, including similarities or differences between members, the type of activities completed, and the use of reflective practice techniques.

10. Share Your Experiences

Sharing your experiences with others is a valuable way to learn. This might include giving talks, participating in trainings, teaching courses, or writing articles. These activities require reflection, which can produce new insights, and interactions with people can stimulate thinking and further reflection on those experiences.

Author Biography

John Lande, JD, PhD is the Isidor Loeb Professor Emeritus at the University of Missouri School of Law and former director of its LLM Program in Dispute Resolution. He earned his JD from Hastings College of Law and his PhD in sociology from the University of Wisconsin-Madison. Since 1980, John has practiced law and mediation in California, and since the 1990’s, he has directed a child protection mediation clinic.

The American Bar Association has published John’s books, including ‘Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money‘ and ‘Litigation Interest and Risk Assessment: Help Your Clients Make Good Litigation Decisions‘ (co-authored with Michaela Keet and Heather Heavin).

John frequently writes for the Indisputably blog and has received many awards for his scholarship, most recently the American Bar Association Section of Dispute Resolution’s award for outstanding scholarly work. You can download articles on a wide range of dispute resolution topics from his website.

Gathering food for thought: First Nations peoples’ approaches to peacebuilding and peacemaking in Australia

Posted on 17/05/2024 by AlysounBoyle

We recognise and respect the intimate custodial relationships First Nations peoples observe in their lands, their waterways and the oceans that caress their lands. We are mindful that their cultural and spiritual affiliations are healing ongoing colonial harms, and hope that this project creates healthy pathways for recording, recognising, and restoring their ancient ceremonies, and for supporting ancient and contemporary peacebuilding practices.

We respect the significant role of Elders, and are committed to reconciliation among all people.

Gathering Food for Thought – the Project

This landmark research project was funded by an MSB grant in 2022, with additional funding from the College of Human and Social Futures at the University of Newcastle. The Research Team’s lead investigator was Professor Tania Sourdin, with Dr Helen Bishop (a First Nations woman) as the lead researcher. Other team members were Dr Bin Li (University of Newcastle), Sally Prowse (University of Newcastle) and Alysoun Boyle (University of Newcastle and RMIT). We were assisted by a Project Advisory Group, a majority of whose members are First Nations experts and practitioners.

Our final report was released to the MSB and the university in February this year, and is available online at the websites of both institutions: Mediator Standards Board and University of Newcastle.

Being restricted to available funding, the research was limited to a desktop review of collected materials relating to First Nations peoples’ approaches to managing conflict: peacebuilding and peacemaking. A key finding included in the report is that there is a notable lack of inclusion of First Nations researchers in studies of matters that affect their peoples. This has led to research outcomes that have been defined by mainstream preferences, rather than reflecting First Nations viewpoints and ideas. Similar limited First Nations peoples’ primary engagement was noted in commissions of enquiry as well as in the design, delivery, and evaluation of a range of community-based dispute resolution programs and services.

Research significance

According to Dr Helen Bishop, “The Gathering Food for Thought Report is profoundly significant. It unveils both ancient and contemporary knowledge and practices essential to First Nations peoples’ coexistence, governance, and social systems. I eagerly await the involvement and insights of my fellow First Nations researchers into future studies of First Nations peacebuilding and peacemaking approaches, needs, and resources. I want to thank the Research team, the MSB and the University of Newcastle for their commitment to this landmark work.”

To our knowledge, this is the first time such a collection of materials has been systematically reviewed and analysed. The collection is currently stored in a secure online facility, and the primary longer-term intent is that it be readily available to all First Nations’ communities and practitioners and this is likely to be facilitated by the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS). The materials reviewed in the report include historical anthropological reports (some dating back to the late 1800s), reports from Royal Commissions, case studies, journal articles, books, and other publications. We have also explored the pivotal role of language in maintaining and safeguarding culture, and the links between wellbeing and cultural connection.

Research approach

We have taken a dispute system design approach to our research, and this arose from the clear need to set the project in an appropriate context: acknowledging First Nations peoples’ approaches to conflict, and their age-old systems, processes, techniques and skills, and exploring ways in which they might be recognised within existing Australian dispute resolution frameworks and standards. It is clear that there is incredible variety, depth and ways to talk in the First Nations experience of conflict management, and the final report represents only the first stage in a much larger research undertaking.

Throughout the project, we are taking a First Nations peoples-centric approach, amplifying their perspectives and knowledge, working collaboratively in ways that recognise and respect each other’s capability and learning. Our priority is to ensure participation by First Nations peoples, and provide benefit to their peacebuilders and peacemakers.

Next steps

There is very limited professional recognition and effective professional support for First Nations peacebuilders and peacemakers reflecting a broader lack of sensitivity to and recognition of their culturally diverse and specific practices and skills. In our report, we have called for more inclusive approaches to research in this area, promoting the engagement of First Nations researchers in the design and delivery of all future studies.

It is expected that this unique project will result in an invaluable knowledge base to inform ongoing and future research in this area, as well as making a significant contribution to the scope and design of support networks, training programmes, and practice frameworks relating to First Nations peoples’ peacebuilding and peacemaking systems, processes, techniques, and skills, both in Australia, and elsewhere.

Our report includes twelve areas of research in which “Next Steps” are suggested, including:

The importance of:

Engaging First Nations peoples in the design, delivery, and analysis of research studies; and
Establishing culturally appropriate protections of the intellectual property relating to historical and contemporary First Nations materials.

The need for:

Research materials to be accessible to non-researchers, and be presented in plain English;
Appropriate recognition and responsiveness to cultural sensitivities in this area (the Research Team developed their own “Cultural Responsiveness Statement” which is included in the report);
Further exploration of the influence of Elders and other community leaders in the safeguarding of social cohesion and the management of conflict in a community context;
Further exploration of the extraordinary diversity of First Nations peoples’ approaches to peacebuilding and peacemaking, including the influence of complex social relationships such as kinship groups; and
Government-funded conflict management programs and services to more fully engage First Nations communities in the design, delivery and evaluation of such programs and services, ensuring that mainstream preferences do not dominate in these areas.

Sitting in Many Camps

In May this year, members of the Research Team and the Advisory Group met on Gadigal Country (Sydney) and planned the next phase of this project. They agreed that it is to be called “Sitting in Many Camps: Celebrating and Supporting First Nations Peacebuilding and Peacemaking”. The phrase, Sitting in Many Camps, was first used some years ago by Mr Charlie Watson, a Kangalu and Birri Gubba (Wiri) man who grew up in his Mother’s Kangalu Country in Central Queensland.

Breaking Negotiation Deadlock: Co-Creating the New Intercultural Competence Playbook

Posted on 26/04/2024 by Milan A Nitopi

By Rory Gowers
15 March 2024

Author note: Intercultural is not multicultural, or cross cultural. ‘Intercultural’ is described as “communities in which there is a deep understanding and respect for all cultures. Intercultural communication focuses on the mutual exchange of ideas and cultural norms and the development of deep relationships. In an intercultural society, no one is left unchanged because everyone learns from one another and grows together.” — Paula Schriefer, Spring Institute

Source: Nina Simon, 15 October 2014

We have recently heard from two long-standing luminaries in the world of conflict resolution and negotiation.

On 22 February 2024 Dr Rosemary Howell in her post within the Kluwer Mediation Blog refers to recent research by Cobb, Castel and Sultani with its dark summary of our times with “Polarisation, violent conflict, fractures, and divisions across and within societies are on the rise globally …” labelling ‘Hyperpolarization’ as “the state of the world we currently inhabit”.

Dr Howell acknowledges the bleakness of the situation, however she points to the encouraging work by Carrie Menkel-Meadow which provides an optimistic insightful and constructive recipe – an article well worth a full read.

On 24 February 2024 William Ury, co-author of Getting to Yes, in a seemingly unrelated post, recalled his recent appearance on Ari Melber’s The Beat concerning the current political tribalism in the United States of America. Ury states “we need more conflict – not less”, and further suggests that we cannot end polarization, however we can transform it into ‘healthy conflict’ with constructive creative negotiation.

Of course, in Australia we see similar polarization of political debate, as demonstrated in the 2023 Referendum, and this continues to stymie meaningful bipartisan collaboration to this day.

Such polarisation does not achieve constructive outcomes for a peaceful and progressive society but serves dominant factions in enlarging their power base and further marginalising minority voices.

Many of us will agree with the statements from both Dr Rosemary Howell and William Ury that the first constructive step is to reframe the context of the conflict by helping parties reflect on the cultural background dynamics shaping the narrative and expectations of each party (and their tribe). It is also useful to adopt the ‘balcony strategy’, as explained by Ury, as well as considering the other party’s perspectives to get the full context.

I encourage all to employ the use of an acronym of the word ‘cultural’ to remind us of the full scope of a cultural background: Commonly Understated Lores, Traditions, Understandings, Rituals, Expectations, Assumptions, Legacy.

By reframing the context of conflict, participants become more empowered and are in a better position to see life from all sides which then prepares them to confer more civilly with others in a joint constructive discourse as all parties seek to bridge the current impasse with practical and realistic solutions that meet the legitimate needs of all.

But is this enough to break the polarization?

After a decade of mediation, I think not; that is, unless we are prepared to adapt the process and embrace the culturally embedded needs of each party rather than blindly use the standard dominant culture’s approach (i.e. western culture). It is a whole new playing field!

I make ‘A Call for a new Intercultural Competence Playbook in Mediating social transformation’ in a recently published peer-reviewed research paper. I posit a new level where the future of mediation is intercultural. This paper can be located on the University of Montreal’s Online Law Journal Lex Electronica Volume 28 n. 5 2023 Special Dossier, Paper 13, pp. 195-215.

We require a new toolkit, and the adventure of our time is to co-create it. Will you join me?

A call for a new mediator playbook

In my paper I claim that “every culture is in conflict; conflict is endemic in the process of culture metamorphosis.” My paper examines the paradox that conflict is intrinsic to every culture, yet there is little attention to the ‘culture’ norms in resolving that conflict. I refer to original thinkers such as Hofstede and Ting-Toomey and compare their contributions to the change in intercultural understanding since.

We are in an unprecedented global pandemic where cultural norms and expectations are under threat, in individualistic and collectivist cultures. We face existential threats from climate change and environmental catastrophes. We need a new mediator playbook for effective intercultural negotiation and issue resolution.

All professionals can acquire intercultural skills, mentorship, or supervision; join immersion events to extend intercultural awareness and communications skills; foster inclusive work environments; adapt coaching methods; cultivate intelligence about cultural differences; and engage with a positive intercultural predisposition, and approach.

Everyone can actively facilitate social transformation by making peace with the other cultures in your land as a vital forerunner to effective intercultural mediation of conflicts.

To allow peace a chance, we must unlock and activate intercultural competence in mediation!

I invite your active participation in reading my paper and responding to the recommendations I put forward.

For this playbook to succeed our approach must be intercultural. Let’s start now. Welcome aboard!

Author biography
Rory Gowers is a Master of Dispute Resolution MDR, a Master of Education MEd, an intercultural mediator, and a business strategist, residing in Brisbane, Australia. Rory has extensive international experience as a visionary business problem solver, and certified results coach. Rory’s mission is to facilitate a more respectful world by inspiring people and groups to transform business ecosystems with practical sustainable solutions with a vision to facilitate a place for all and peace for all in our time. Contact Rory via
Webpage: www.myRESPECTability.com
Email: rory.gowers@gmail.com
Mobile: +61 425292811
LinkedIn: www.linkedin.com/in/constructiveconflictsolutions

How can Victorian courts better address the needs of self-represented litigants using online court and dispute resolution processes?

Posted on 12/04/2024 by Associate Professor Becky Batagol

By Sarah West

April 2024

This post is the third in a series of posts on this blog written by students studying Non-Adversarial Justice at the Faculty of Law at Monash University in 2023. Students were invited to write blog posts explaining various complex areas of law relating to dispute resolution to ordinary readers. The very best post on each topic is published here.

According to Anne Wallace and Kathy Laster, the COVID-19 pandemic acted as ‘a catalyst for digital innovation’ in the Victorian court system, forcing a rapid shift into the online space with virtual/remote hearings and online dispute resolution.

Joel Gillman Class Glitch CC BY-SA 2.0 DEED

Alongside this shift, the Senate Standing Committee on Legal and Constitutional Affairs has noted that Victoria continues to grapple with another major challenge; the increasing number of people appearing without a lawyer, otherwise known as self-represented litigants (SRLs). For example, the Supreme Court reported that, in the last financial year, there was a 30 percent increase in the number of queries from SRLs compared to the previous year.

This blog will explore how Victoria’s increasing foray into online dispute resolution and digital/technological innovation can better address the needs of many SRLs, whilst also considering the potential issues it may create.

Did you know online dispute resolution does not just mean court on Zoom?

It is important to note that online dispute resolution is not just limited to virtual hearings. According to Queensland barrister Katrina Kluss, it encompasses any dispute resolution that ‘is facilitated or assisted by information and communication technology.’ According to Kluss, online dispute resolution tools fall into three key categories: facilitative, advisory and determinative.

Facilitative technology

Technology facilitated dispute resolution encompasses all tools that facilitate hearings, such as programs like Skype or Zoom discussed above. However, it can also include technology that facilitates the process in other stages, like facilitating electronic lodging of documents. “E-filing” benefits SRLs by saving time and costs arising from physically delivering documents. Philippa Ryan and Maxine Evers note how it can also assist SRLs in preparing forms/documents by providing drop-down boxes to reduce user error and including links to where SRLs can find further information or sources.

Advisory technology

One area where there’s significant growth potential is in the AI advisory space, according to computer scientist John Zeleznikow. Legal representation gives litigants the advantage of being able to seek advice about the likely outcome of their case which helps with expectation management and in making an informed decision about if/how to proceed. As Zeleznikow explains advisory technology, like tools that provide reality testing and BATNA (or Best Alternative to a Negotiated Agreement) advice, is ‘a vital cog in supporting [SRLs].’ Giving SRLs access to such technology would also benefit the courts by acting as an inducement to SRLs with limited prospects to drop or settle their case, which in turn would free up court time and resources for more contentious disputes.

Determinative technology

The final, and perhaps most interesting or controversial, of Kluss’ category of online dispute resolution is determinative technology; software that issues decisions based on data analysis. Such tools would obviously allow for quick and cheap (or even free) resolutions, which would be undoubtedly appealing for an SRL. For this reason, it has gained popularity in the e-commerce space.

A likely familiar example used by Colin Rule is the electronic marketplace, eBay. Due to the nature, sheer volume and relatively minor sums involved in eBay disputes, speed and cost efficiency is paramount. Accordingly, eBay realised that providing a facilitative resolution model wouldn’t be sustainable, so it opted for a fully automated dispute resolution program that is able to conduct problem diagnosis and technology-assisted negotiation, and finally make decisions if negotiations are unsuccessful. This program is used to resolve 60 million disputes annually.

In addition to being quick and cheap, Rules argues that AI determinations can provide a greater degree of consistency and thus certainty in dispute resolution by removing the fickleness of human judgement, which leave SRLs more satisfied given their outcome is more likely to be consistent with similar cases. However, whilst there’s undoubtedly value in embracing this kind of technology for certain disputes, as Kluss explains, where disputes are complex, emotionally charged and/or financially significant –

‘the absence of human insight, empathy, and guidance, provided to users of [online] dispute resolution platforms … is susceptible to creating, rather than abating, confusion among defendants thereby detracting from the intended benefits.’

Finally, it’s likely that some SRLs will be wary of, or reluctant to embrace, automated/algorithmic decision-making, especially following the “Robodebt” scandal; where a Royal Commission found the automated decision-making scheme involved was ‘a crude and cruel mechanism’ that resulted in the raising of ‘demonstrably wrong debts’ (final report Vol 1, xxix-xxvi).

Is virtual dispute resolution better for SRLs?

What are the benefits of the use of facilitative technology for online dispute resolution for SRLs in Victorian courts?

Virtual dispute resolution is less intimidating

Appearing in court, or even in alternative dispute resolution processes like mediation, can be incredibly intimidating for anyone, even lawyers, but especially for SRLs who usually lack legal expertise and/or experience with the system, argue Michael Legg and Anthony Song and Stuart Ross and Sophie Aitken. Accordingly, allowing SRLs to appear from their own space, rather than a court/conference room, helps reduce formality and adds an element of arm’s length to the dispute (including by preventing accidental run-ins between parties during breaks), which may make the SRL feel more comfortable when appearing. Notably, it’s quite common for victims of violence or abuse to be self-represented as, according to Zeleznikow, they’re ‘particularly likely to have few resources and little opportunity to obtain the services of a lawyer. Stuart Ross and Sophie Aiken argue that as a consequence, the emotional and physical distance that a remote hearing provides can be especially important.

It reduces travel and related costs

Virtual appearances eliminate the need for SRLs to travel (and thus incur travel-related costs), argue Philippa Ryan and Maxine Evers. This is especially impactful on those living rurally or internationally, those with mobility issues and for parents or caretakers who have to find alternative care arrangements.

The value in having this technology available is notably pronounced when it comes to the preparatory meetings/hearings required before a trial. These pre-hearing appearances are often administrative and commonly short, some even taking mere minutes, so not having to appear physically saves SRLs significant time and costs, say Ryan and Evers.

However, it can make the system less accessible for some

Although virtual dispute resolution improves accessibility for some, it can actually hinder access for others. The Victorian Multicultural Commission argues that, this particularly impact those who don’t have access to the necessary facilities/resources like a computer/phone, stable internet connection and a quiet place to appear, and/or those who lack technological skills. As the Victorian Government identifies in its Digital Inclusion Statement, the most ‘digitally disadvantaged’ Victorians include those living in low-income households, disabled persons, senior citizens, those with low educational attainment and First Nations people. Many of these groups are also significantly overrepresented within our justice system, especially our criminal justice system, so it’s especially imperative that measures and accommodations are available to those without means or skills to access the technology. This may be as simple as keeping available the option of hearings in person or via ‘the much more accessible technology, the telephone’ argues Bridgette Toy-Cronin. It could also mean providing additional supports and resources like online/remote technical support, interpreters and educational programs.

There’s also a lot to be said for the value of a face-to-face conversation when resolving disputes, especially when engaging in alternative dispute resolution. Speaking to someone through a screen can depersonalise the discussions and network or technological issues can affect the parties’ capacity to engage meaningfully and build rapport, says Shira Scheindlin. The Multicultural Commission also identified that mistrust of technology and privacy concerns mean some SRLs are reluctant to discuss confidential matters online, which can also hinder meaningful engagement.

Technology problems can hamper participation in ODR: ‘I’m not a cat’: lawyer gets stuck on Zoom kitten filter during court case: source Youtube

Problems also potentially arise in relation to virtual cross-examination of witnesses as examiners can’t properly read demeanour or body language over video. This would make the task especially difficult for SRLs who can’t fall back on witness examination experience.

Conclusion

Embracing online dispute resolution is one of the most significant steps courts can take to better meet the needs of SRLs, as it has the potential to make justice cheaper, easier and more accessible. However, like with any innovation, it’s imperative that change is not so quick or drastic that it leaves people behind. Noam Ebner and Elayne Greenberg argue that the primary way to safeguard against this is to ensure there’s appropriate consultation and input in the development and roll out of new technologies from all justice stakeholders, including layperson litigants.

In short, we must embrace technology to make our legal system more accessible to SRLs, but we must be strategic to ensure we are not leaving the most vulnerable behind.

About Sarah West

Sarah has just completed her Bachelor of Arts and Laws (Honours) double degree at Monash University. In her Arts degree she majored in Criminology.

Sarah has just begun as a graduate at MinterEllison Lawyers and is currently rotating through the Statutory Compensation team. Through her studies, Sarah developed a passion for understanding how we can make our legal system more accessible to individuals.

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

Posted on 12/10/2020 by Dr 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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