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.

So You Want to Incorporate Intersectionality Into Your Legal Practice? A Primer

Posted on 28/03/2024 by Associate Professor Becky Batagol

By Thomas Ponissi
22 March 2024

This post is the second 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.

Disclaimer: this piece contains content that some readers may find distressing.

Beyond ‘either/or’

The term ‘intersectionality’ has been co-opted in so many ways — in left-wing memes, in right-wing culture wars, in digital shopping carts — that you’d be forgiven for forgetting what it actually means. Ironic, considering that the concept was first coined by Kimberlé Crenshaw, a Black woman, and you could write a thesis on the endless appropriation, and misuse, of concepts and terminology that originated in Black culture.

So, what is intersectionality? It is the idea that a person’s lived experience is influenced by the various identities that they inhabit (for example, their socio-economic status, or ethnic background), as well as the way that these identities overlap and/or diverge in unique ways. The result may be privilege in certain contexts and/or “compounded disadvantage” in others. I use ‘and/or’ very deliberately because intersectionality challenges binary thinking; its application must be fluid and contextual, tailored to the unique facts of each situation.

Crenshaw, an American legal scholar, developed the idea in response to DeGraffenreid v. General Motors, an unsuccessful 1976 discrimination claim lodged by several Black women who had all been denied work at a local factory. The US District Court for the Eastern District of Missouri found that there had been no racial discrimination, because there were Black men employed at the factory; the Court also found that there had been no sex discrimination, because there were white women employed at the factory. According to District Judge Wanglin, the claimants had to pick one part of their identity: their gender or their race. To lodge a claim on the basis of both attributes would supposedly constitute an unfair “super-remedy” — even though it was the intersection of those two attributes that characterised the discrimination on the facts.

Thankfully, we are growing in our appreciation of the complexities of identity and discrimination; some governments, and even courts, are beginning to listen. However, we still have a long way to go. Only last year, Australian Senator Lidia Thorpe alleged that she had experienced sexual harassment in the Commonwealth Parliament — and that “it wasn’t until a white woman stood up” with a similar allegation “that the media took notice”. Clearly, an intersectional approach — and a reckoning with implicit bias — remains indispensable. That’s where your legal practice comes in.

“We are growing in our appreciation of the complexities of identity and discrimination.”

Image source: Alice (six_impossible_things), Unsplash

Turning theory into practice

Researchers have found that intersectionality “has taken root” in disciplines like education and psychology. Why not in law, though? Perhaps this is due to the conservative, ‘black-letter’ approach to law — and to law reform — that some in the industry still follow.

Throughout my discussion, I will balance the rewards of an intersectional approach to legal practice with the risks. It is important to remember that no one practitioner or firm can resolve centuries of structural oppression; it is neither your responsibility nor within your capacity. However, there are still tangible steps that can be taken to begin to “restructure the distribution of opportunity and “practise law as a healing profession”.

1. Be aware

Legal practitioners should, as far as practicable, have “historical and contextual understanding” of the communities they work with. This is particularly important when practitioners do not share their clients’ lived experience. Criminal defence lawyer Russell Marks explores this tension at length in his book Black Lives, White Law. Marks, a white man based in South Australia, works mostly with Aboriginal and Torres Strait Islander persons, including in remote Northern Territory. Marks is mindful of his status as an outsider who interacts with the criminal legal system in a substantively different way.

For intersectionality to be meaningful in practice, lawyers must understand what it actually entails. This might be achieved through cultural competency training or other professional development. It is also beneficial to adopt a holistic, non-exhaustive approach to the identity markers relevant to an intersectionality analysis. Though the four attributes covered by federal anti-discrimination legislation — age, disability, race, and sex (or, gender) — are often front of mind, there is no ‘ceiling’ on what might be considered. In fact, thinking outside the box will enhance your practice’s incorporation of intersectionality.

What is your client’s level of educational attainment? Do they live near affordable public transport? How proficient are they in speaking English (or the official language of your jurisdiction)? Were either of their parents ever incarcerated? These are just some of the questions you might consider asking to help gain a deeper understanding of the circumstances that have brought a person to you.

2. Be class-conscious

Marxist scholars have critiqued intersectionality for placing “other forms of social differences […] centre stage” when analysing oppression, ignoring class not just as another ‘social difference’ that affects lived experience, but as the overarching factor that exacerbates other forms of marginalisation. Indeed, one review of demographic data collection in intersectional studies found that 77% of samples measured sex and/or gender, and 72% measured race and/or ethnicity, but only 33% measured socioeconomic status. Here, we can see the lack of consideration given to class, even when practitioners explicitly intend to be intersectional.

However, the problem isn’t intersectionality itself but its application; legal practitioners can mitigate this by remaining vigilant. Access to justice for poor persons is already obstructed by the prohibitive cost of legal advice and representation. A lack of class-consciousness can also have the effect of excluding prospective legal practitioners; many demands of professional development — for instance, unpaid internships — are near-impossible for poorer people. Affirmative action programs that facilitate participation, through initiatives such as mentoring or financial aid, are essential to achieving socio-economic intersectionality.

3. Be strategic

There are areas of law where intersectionality is fundamental. For instance, in the criminal legal system, a person’s indigeneity and/or ethnicity may, due to structural racism, make them more vulnerable to harsher policing and/or judicial sanction. Accordingly, an intersectional approach is necessary in order to identify any exceptional circumstances that might be relevant to bail or sentencing.

There will also, of course, be disputes where an intersectional approach is less useful; for example, in corporate contracting. There may even be socio-emotionally charged disputes where intersectionality is not the most appropriate framework, and the focus should be on, for example, parties’ relationships instead of identities. However, this doesn’t mean that intersectionality is unnecessary as a rule, but merely that it should always be deployed deliberately, with careful regard for the specific facts at hand.

4. Be structured and sensitive

Taking concrete organisational steps towards intersectionality ensures that it is “more than theory”. Intersectionality should be an active practice, embedded from “the front-end (point of entry) of the justice system”. Triage processes can facilitate this via the collection of extended baseline data about clients, in order to better understand the totality of their identities — and to better cater to their legal needs.

Incorporating intersectionality is “a process of continuous improvement”. We all will make mistakes along the way. However, safeguards can be introduced to mitigate the harm caused by these errors.

Collecting data on identity characteristics, or focusing on a person’s experience of discrimination or suffering, can indirectly “reinforce ideas of inherent differences […] rather than point towards actionable solutions”. Clients need to understand why this information is being collected (ie, to enhance their legal advice or representation); otherwise, they may feel that they have been further victimised by the process.

Practitioners should work collaboratively with clients, as well as listen to their client’s interests and concerns, rather than assuming that their clients feel burdened by their identities.

The intersectional processes that I have advocated may unintentionally ‘out’ people who do not wish to discuss certain parts of their life; for example, women of faith whose religions are considered by some as sexist, but which the women do not want to feel pressured into renouncing. This phenomenon is known as ambivalence, in which overlapping identity characteristics foster “mixed and contradictory feelings” in the individual.

These dynamics must be navigated sensitively. Legal practitioners might adopt a multidisciplinary approach and work with other professionals, like social workers. The integration of legal services with other professions, like health, is a growing feature of public policy. Such a development can be mirrored in private practice, too.

Intersectionality may be the way of the future, but there is no reason not to begin incorporating it now.

5. Be resilient

Maintaining an intersectional approach may provoke an adverse reaction in some clients, or even coworkers; certainly, not everyone is a fan of the concept.

However, it is a matter of persistence and tact — of developing a vocabulary to either explain intersectional concepts in a manner that is accessible to skeptics, or alternately embedding it within systems so seamlessly that it is not noticeable.

These are long-term initiatives, not ‘quick wins’, but this should not dissuade us from doing the hard work. We will be better lawyers because of it.

About Thomas Ponissi
Thomas Ponissi (he/they) is a Laws/Global Studies student, specialising in Human Rights. Thomas is currently on exchange and completing his final semester at Boston College, USA. He has worked as a paralegal and an administrator in community legal centres.

Family Dispute Resolution is not serving the needs of all Australians

Posted on 13/03/2024 by Associate Professor Becky Batagol

By Jayarupi Pahala Vithana

13 March 2024

This post is the first 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.

What is Family Dispute Resolution?

Family dispute resolution (or ‘FDR’) is a process in which an accredited practitioner helps families to resolve disputes arising from separation or divorce in a non-judicial setting.

An FDR practitioner will help families to create parenting plans setting out future arrangements. The practitioner will help parties to identify the issues they need to resolve and encourage them to consider each other’s points of view, with a focus on arriving at practical solutions that protect children’s best interests. FDR offers families a great degree of flexibility to adjust procedures and outcomes to suit their needs. This process is especially appropriate for the personal nature of family disputes, which impact the welfare of children and concern intimate relationships.

Image: Ketut Subiyanto, Pexels Stock Image

How well does FDR achieve its ideal?

Ideally, FDR should lead to effective and sustainable agreements. For FDR to provide effective justice, it needs to respond to the needs of all Australian families.

However, Australians from culturally and linguistically diverse (‘CALD’) backgrounds are substantially under-represented in accessing FDR services, according to research conducted by Dr Susan Armstrong of Western Sydney University.

Professor Lola Akin Ojelabi, RMIT, argues that CALD families face numerous barriers to accessing FDR services: a lack of awareness, issues with language, religion, and social norms, or concerns that FDR is tailored for a specific type of ‘Australian’ family and will not suit their needs.

The Evaluation of the 2006 Family Law Reforms showed that FDR services fall short in their responsiveness to the needs of CALD families. That research showed that professionals in the family relationship sector do not feel confident providing services to CALD and Indigenous families. The evaluation also noted that though FDR providers are required to be accredited, their training does not require cultural competency.

Re-Designing Family Dispute Resolution

FDR providers and decision-makers can re-design their processes to be more accessible and effective. Here are some key changes that will improve the quality of justice provided to CALD families.

Work in partnership with CALD and First Nations groups.

Family Dispute Resolution centres should partner with organisations that work with CALD communities. This could involve forging relationships with cultural organisations or employing community groups and elders as cultural advisors. This will promote the visibility of FDR services and the involvement of members of specific cultural groups will help bridge the gap in language and cultural norms, reducing the reluctance of CALD families to access FDR.

Partnered organisations can be involved in the process of reviewing and improving FDR processes to be culturally appropriate. For example, Victoria Legal Aid partners with Aboriginal-controlled services such as Djirra and the Victorian Aboriginal Legal Service in implementing their frameworks for FDR for Aboriginal and Torres Strait Islander families.

Support FDR Practitioners to ensure their practice is culturally sensitive and self-reflective.

It’s impossible for all practitioners to be knowledgeable about every culture and language, or to be fully across the complex social, cultural, and religious factors that influence a family. What is more important than an encyclopaedic knowledge is the attitude that FDR practitioners bring in communicating with clients of different backgrounds to their own.

FDR practitioners should undertake training on the importance of reflecting on the ways that their own cultural contexts influence their values, biases, and identities. According to Dr Susan Armstrong, a self-awareness of the influence of one’s own cultural framework and a genuine desire to be sensitive in connecting with other people on an equal footing will allow FDR practitioners to create a welcoming and non-judgemental space. Education is necessary to eliminate prejudices or unknown biases. For example, a common bias is the belief that speakers of English as an additional language are less intelligent because of their accented English. Families will feel more comfortable talking to a practitioner who does not speak to them in a patronising tone, and who does not become impatient when they cannot understand an unfamiliar accent.

Mandatory cultural competency training as part of FDR practitioner accreditation.

A person’s cultural background affects the way their family functions and their priorities in resolving disputes.

Family units and relationships look very different in some cultures compared to others. Professors Ghena Krayem (University of Sydney) and Farrah Ahmed (University of Melbourne) note that for some CALD communities, it is important that respected older family members or community leaders are approached first for guidance in helping resolve family disputes. Their involvement in this process can help provide an affirming experience for the parties. In other cultures, divorce is considered deeply shameful. Parties may want to limit the involvement of extended family in future childcare arrangements or may need to unpack their own feelings of guilt or shame before coming to workable solutions.

Furthermore, red flags that signal family violence look different for different cultures. For example, in South Asian communities, issues of dowry and dowry abuse may be an avenue for financial control or abuse.

A culturally competent FDR practitioner will be aware of these differences when mediating discussions between parties.

Culturally responsive FDR can assist FDR practitioners to ensure that any agreed arrangements protect children’s right to enjoy their culture.

Employ a culturally diverse staff.

Multicultural or multilingual FDR practitioners and staff can bring an ‘enormous amount of knowledge and experience’ about their communities, according to Armstrong. Clients might find it easier to build rapport and trust if a practitioner speaks their language.

However, some clients might feel uncomfortable sharing personal matters in front of someone who is from the same background, especially if they are concerned about the person being a part of the same circles as them, or being a non-neutral participant due to cultural influences.

Employing multicultural staff does not necessarily mean that a practice is culturally competent. Even practitioners from diverse cultural/ linguistic backgrounds themselves should be supported to reflect on the influence of their own cultural belief system on their practice.

Formalise processes to ensure a consistent approach.

Although FDR practitioners currently may respond to families’ cultural differences on an ad hoc and case-by-case basis, FDR centres should formalise a culturally responsive approach in a comprehensive, strategic and holistic way.

Screening and intake tools can be adapted to accommodate cultural and linguistic differences so that families are supported from their first interaction with FDR. Formal protocols can be put in place to require FDR practitioners to make culture a visible part of the discussion process.

Armstrong argues that FDRP’s should continually review and assess how they are providing FDR services to CALD families.

FDRPs can ensure referral practices effectively identify and assess cultural contexts, preferences and needs.

The challenge for culturally responsive practitioners: preventing exploitation of culture.

There are legal limits to the ability of FDR practitioners to accommodate the practices, values, and norms of different cultures. FDR practitioners should be clear to participants about the limits of the process and be wary of avoiding falling into traps of cultural relativism that compromise fairness and procedural justice.

Akin Ojelabi warns that vulture can be exploited: FDR practitioners should keep an eye out for the way that cultural dynamics affect the balance of power between parties, and should be careful not to allow their culturally responsive approach to validate giving one party more power over another. For example, women from Iraqi and Lebanese communities have perceived that women are mostly blamed in their communities for family breakups, and their opinions are not always accepted in their traditional culture. However, Iraqi men have expressed that they are treated badly under Australian law. In this example, men may be wary of mainstream Australian FDR practices if they provide an equal standing for a woman’s opinion.

Culture should not be used as a reason to compromise the right to a fair dispute resolution process in such situations.

About Jayarupi Pahala Vithana

My name is Jayarupi and I am a final year Law/Arts student at Monash University, majoring in Human Rights. I am currently working as a paralegal in commercial law and completing a professional practice placement at the South-East Monash Legal Service. I am passionate about improving access to justice for low socio-economic groups and culturally and linguistically diverse Australians. I have had the opportunity during my placement to see the importance of having a culturally responsive approach in legal practice and the difference it makes for clients of diverse backgrounds.

Registration for 12th ADRRN Roundtable

Posted on 11/12/2023 by Jonathan Crowe

We very much look forward to welcoming you to the 2024 ADR Research Network Roundtable co-hosted by Western Sydney University School of Law and University of Sydney Law School on Monday 5th and Tuesday 6th February 2024.

The Roundtable will be held at Western Sydney University (WSU) Parramatta City Campus.

Please register via the following link: https://events.humanitix.com/12th-adr-research-network-roundtable-2024

Call for papers EXTENDED: 12th ADR Research Network Roundtable 2024

Posted on 09/11/2023 by Dr Rachael Field

The call for paper proposals for the 12^th ADR Research Network Roundtable 2024 has been extended to 10 November 2023. Please see submission details below:

The 12th Annual Research Roundtable of the Australasian Dispute Resolution Research Network (ADRRN) will be co-hosted by Western Sydney University, School of Law and the University of Sydney Law School, in Parramatta NSW on Monday 5^th and Tuesday 6^thFebruary 2024.

The ADRRN is calling for papers for the 2024 Roundtable. Paper proposals of no more than 300 words should be submitted via email to a.aftab@westernsydney.edu.au

Presenters will have the option of submitting – prior to the Roundtable – a full draft of the paper for peer commentary. All presenters are invited to publish a 1000-word blog post on the ADRRN Blog at https://adrresearch.net/ after the Roundtable.

Paper proposals that consider dispute resolution from a scholarly, critical and/or empirical perspective are welcome. We particularly encourage submissions from postgraduate students and early career researchers. All proposals will be considered. The focus is on work in progress so usually papers should not have been published or submitted for publication.

The date for notification of acceptance is 17th November 2023. Presenters who are seeking peer commentary on a full draft of their papers should submit the full paper by 5th January 2024 (to allow commentators a month to review).

If you have any questions or require further information, please contact us at a.aftab@westernsydney.edu.au

We look forward to gathering as a Network and sharing our work-in-progress in February 2024.

Amira Aftab and Ghena Krayem

2024 ADR Research Network Co-Presidents and Roundtable Conveners

Call for Papers: 12th ADR Research Network Roundtable 2024

Posted on 21/07/2023 by Jonathan Crowe

Monday 5^th and Tuesday 6^th FEBRUARY 2024

It will be held in person at Western Sydney University, Parramatta NSW

CALL FOR PAPER PROPOSALS

There will be no registration fee for the 2024 Roundtable. Catering will be provided thanks to Western Sydney University, School of Law. Participants will be responsible for their own travel and accommodation costs.

ADRRN Roundtables provide a collaborative and supportive research environment for work-shopping papers-in-progress.

The ADRRN is now calling for papers for the 2024 Roundtable. Paper proposals of no more than 300 words should be submitted via email to a.aftab@westernsydney.edu.au by 31 October 2023. Presenters will have the option of submitting – prior to the Roundtable – a full draft of the paper for peer commentary. All presenters are invited to publish a 1000-word blog post on the ADRRN Blog at https://adrresearch.net/ after the Roundtable.

The date for notification of acceptance is 17 November 2023. Presenters who are seeking peer commentary on a full draft of their papers should submit the full paper by 5^th January 2024 (to allow commentators a month to review).

About the Australasian Dispute Resolution Research Network:

The Australasian Dispute Resolution Research Network brings together leading dispute resolution scholars and provides a collaborative environment to foster, nurture and enrich high quality research and scholarship. The Network is inclusive and forward-looking and seeks to support emerging, mid-career and established scholars to build excellence in the field and provide collegial peer support.

Network activities are expressly designed to provide a supportive and collegial presentation environment in which meaningful discussion and constructive feedback is provided to the presenter.

Network activities include maintaining the ADR Research Network blog at http://www.adrresearch.net and on Twitter and conducting annual scholarly round tables of work in progress since 2012. Guest blog post proposals are always welcome. Feel free to contact us if you have something to post.

As we don’t like hierarchies or unnecessary administration, we don’t have any membership list or legal organisational framework. The way to become a member of the ADR Research Network is to subscribe to the blog: https://adrnetwork.wordpress.com/. This is our primary means of communication. Subscription will mean that every time a post is made on the blog you will receive a notification alert to your email address. Other ways to follow blog activity are through Facebook “ADR Research Network” and Twitter @ADRResearch, but engagement on these platforms is not necessary to keep track of blog activity.

If you have any questions or require further information, please contact us at a.aftab@westernsydney.edu.au

We look forward to gathering as a Network and sharing our work-in-progress in February 2024.

Amira Aftab and Ghena Krayem

2024 ADR Research Network Co-Presidents and Roundtable Conveners

The Long-Awaited Draft Code Revealed!

Posted on 02/06/2023 by Emma-May Litchfield

The independent review of the Australian National Mediator Accreditation Standards (NMAS Review 2020–22) conluded in July 2022. Since that time, the Mediator Standards Board (MSB) has considered the recommendations carefully and is in the process of drafting new standards anticipated to be released later this year.

While we await this exciting reveal, the MSB ‘has decided to release the final report’ and ‘its associated materials’ submitted by the reviewers ‘including the Draft Code and proposed modifications to the NMAS, on the NMAS Review Hub‘.

As it released the documents, the Board explained:

‘Although the Board chose to redraft the NMAS rather than establish a Code administered by a Code Administration Committee, the proposed new standards draw strongly from the review findings
‘The review findings were based on comprehensive research and consultation with our members, and across the mediation and dispute resolution community
‘Resolution Resources‘ vital work has informed the proposed new standards, including in delivering: greater clarity and focus in training methods and practice; multiple levels of accreditation; scope for the introduction of specialisations; considerable improvements in complaints handling and disciplinary processes, with greater involvement of the MSB in those areas; and an overall lifting of training and accreditation standards.’

LINK to the submissions from the Reviewers to the MSB

We, the reviewers, are excited to share the output from the NMAS Review 2020-22 with you. We trust that the dispute resolution community will see evidence of its generous and rigorous participation in the findings, recommendations and the commentary throughout the Draft Code.

Danielle Hutchinson and Emma-May Litchfield

Negotiation, Identity and Justice: Pathways to Agreement by Daniel Druckman

Posted on 13/05/2023 by Dr Rachael Field

In his most recent book Dan Druckman takes the reader on a journey through the three parts of his career: research institutes, consulting firms, and universities. Across the span of his professional years, Dan worked at 16 institutions and has been a mainstay at the International Association for Conflict Management (IACM). An interesting feature of the book is how he managed to weave a triad of overarching themes into this diversified inter-disciplinary career. From his days in graduate school to the present, he has been intrigued by issues of negotiation, identity, and justice. These themes have been pursued assiduously in experiments, case studies, reviews, theory development and in conflict management practice. They are on display in the articles selected for inclusion, ranging from early, middle, and later career contributions and spanning an array of methods, theories, and framework-driven analyses of complex processes. He also provides rare glimpses of behind-the-scenes networks, sponsors, and events with personal stories that make evident that there is more to a career than what appears in print. A concluding section looks back on how his career connects to classical ideas and the value of an evidence-based approach to knowledge generation. He also looks forward to directions for future research in six areas. For young and established scholars alike, there is much to be learned about the career challenges faced and decisions made by Dan. Dean Pruitt sums up the contributions in his quote: “informative and inspirational reading throughout.”

http://www.routledge.com/9781032275734

An Exciting New DR Publication! Mediation and Conciliation: Principles Process Practice by Professor Laurence Boulle

Posted on 03/05/2023 by Dr Rachael Field

I am very pleased to let the Network know that Professor Laurence Boulle – Bond colleague, longstanding member of the ADR Research Network, one of the founders of the world-famous Bond Dispute Resolution Centre, pioneer of dispute resolution scholarship in Australia and friend and mentor to many in the Australian DR community – has a new book hot off the press!

This is a must-have work for all DR researchers and teachers!

The LexisNexis flyer describes the book this way:

This authoritative text addresses the key themes and issues that are essential knowledge for effective mediation and conciliation practice, including the underlying theories and values, mediation and conciliation procedures and the roles of participants and representatives, the modern practice of mediation and conciliation in Australia and internationally, and the laws that regulate aspects of the process. It also discusses quality, standards and accountability in DR processes and the future directions of practice.

It is essential reading for teachers and students of mediation or conciliation, those who practise in those fields, and judges, tribunal and commission members, lawyers and other officials involved in the many legal facets of mediation and conciliation practice. The wide-ranging topics include discussion on new regulatory requirements, practitioner standards, the role of technology and AI in mediation and conciliation and responses to recent social challenges. Relevant case law impacting areas of practice is extensively covered.

Features

• Provides key information to support mediation practice

• Ensures up-to-date understanding of practice issues

• Authoritative author

• Aligns with mediation standards supporting the NMAS accreditation process

Related Lexis Nexis Titles

• Boulle and Alexander, Mediation: Skills and Techniques, 3rd ed, 2020

• Condliffe, Dispute Resolution: A Practical Guide, 6th ed, 2019

• Field, Australian Dispute Resolution, 2022

• Legg (ed), Resolving Civil Disputes, 2017