Reflections on a work in progress: Some observations from the field

This post provides some brief, almost random, reflections on the progress of my research project which is being undertaken at the University of New South Wales. The first part of the post comprises a short description of the project and its rationale.  There is then a brief description of the methodology followed by a narrative of the empirical work done to date.  Finally, I have identified a few triumphs and challenges which have featured in the project up to this point.

The project

The research project in which I have been involved over the last eighteen months concerns the way in which lawyers have responded and are responding to the challenges presented by the introduction to mainstream justice institutions of mediation as an “alternative” means of ending disputes.

The rationale

This is an important subject for research because, in a world where the basis of our cohabitation as social beings in an ordered society is dictated within a framework of rules, rights and obligations and where there is increasing competition for increasingly limited resources, people who find themselves in conflict invariably still consult lawyers. It might therefore be considered that lawyers will continue to be gatekeepers of many dispute resolution processes into the foreseeable future.[1] Lawyers’ traditional role in the western justice system has been to advise their clients about the law and to assert or defend legal rights in courts and tribunals according to legal principles (either well established or developing) which provide predictability and certainty with respect to our rights and responsibilities.  It is an activity which has been jealously guarded by lawyers for centuries and one which assumes that disputes are inherently competitive in nature and must therefore be brought to an end by coercive determination after a decision maker has analysed the merits of competing claims and pronounced judgment.

In recent years, since it has become fashionable for scholastic learning to reach across traditional borders and embrace the wisdom offered by other disciplines such as psychology and sociology, we have learned that sometimes, resorting to the courts for an answer, whilst it may clarify people’s rights and declare the law, does not always provide a solution to the problem for which the lawyer was first consulted. Scholars from a range of disciplines including Sociology, Anthropology and Psychology, to name a few, have taught us that human conflict and dispute resolution can be understood from many different perspectives.  Conflict has been described as: “…a struggle over values and claims to scarce status, power, and resources, a struggle in which the aims of opponents are to neutralize, injure, or eliminate rivals”[2] and as a “…perceived divergence of interest, or a belief that parties’ current aspirations cannot be achieved simultaneously.”[3] It is not simply a question of applying a set of legal formula to a given problem and arriving at an answer which can be universally applied to guide people’s relationships and behaviour into the never ending future.  As the anthropologist Kevin Avruch explains, conflict is a feature of all human societies and an aspect of all social relationships. How we perceive its causes will determine the theories and practices which we adopt in its resolution.[4]

Encouraged by these developments, many academics have sought to extend this knowledge through research designed to improve our understanding of how new and more broadly based notions of dispute resolution might be engaged in conjunction with the law and the formal institutions of justice to assist people to improve the quality and experience of dispute resolution solutions.[5]

What this project aspires to achieve is to provide some authoritative research on how lawyers themselves are coping with the transition from the rule based, dichotomised practice of litigation in a competitive environment to what Macfarlane calls “the new advocacy”[6] in which lawyers will perceive their role more broadly than merely fighting on their clients’ behalf.  The “new lawyers” will assist their clients to engage with conflict and will provide their clients with an understanding of how conflict develops and evolves over time, how it is managed, how to function strategically and implement jointly agreed outcomes.[7]  The question which necessarily arises from this ambition is how lawyers will fill this new role and how they will become equipped and acquire the skills necessary to provide this support.

Methodology

Adopting a qualitative methodology and armed with a list of questions which form the basis of a semi-structured interview, I have embarked on the task of asking lawyers what they think about their role as lawyers, how they perceive the idea of settlement, the extent of their engagement with “non-legal” issues such as emotional and economic interests and when they think that cases should be referred to ADR including, specifically, mediation. I am also asking lawyers some cultural questions about how they perceive the effect on their reputations of engagement with dispute resolution and what values and attributes they perceive to be necessary in aspiring young lawyers.

Reflecting on the work of other researchers (particularly Zariski) it seemed to me that an enquiry of this kind would not be well served by a quantitative survey seeking specific responses to predetermined questions followed by a statistical analysis of the results returned.

In the first place, the available information suggested that the legal community is “surveyed out” and suffering from “survey fatigue” which increases the likelihood of a low response rate and reduction in the validity of the data when considered as a statistical representation of a wider population.

Secondly, and a related issue, is that it was considered that a personal meeting with the respondents would provide an opportunity for the researcher to engage with the respondents in a manner which would encourage them to be more responsive to the study and to be more forthcoming and sincere in their responses to the survey questions.

Thirdly, given the broad range of factors which might influence lawyers in their thinking about mediation and its relationship with legal professional culture, it was considered that a more qualitative approach was justified. This is because the subtle nuances of professional practice cannot always be accommodated by a survey questionnaire and it was considered that the respondents should be given an opportunity of “venting” in a way that cannot be achieved by ticking a box.

Whilst the study is still in its infancy (seven interviews having been conducted and transcribed), there are some clear themes emerging and some challenges to be overcome.

Some emerging themes

Dealing firstly with the emerging themes, it should be said that the lawyers to whom I have spoken are far from being a homogenous group. Some are commercial lawyers who act either for plaintiffs or defendants in a variety of commercial causes. Some are family lawyers and some are personal injury lawyers.  One is a workplace relations lawyer who acts both for employers and employees and another is an in-house lawyer who acts only for his underwriter employer as a defendant in professional indemnity insurance claims.   One is employed by a large national law firm.  The others are employed mainly in small to medium sized regional law firms in the Newcastle and Lake Macquarie regions of New South Wales.  All were familiar with facilitative mediation and some had attended numerous mediation events as lawyer advocates, although some were also largely unaware of other forms of ADR such as early neutral evaluation.  A number of respondents were themselves accredited mediators.  In those cases, respondents were asked to consider the questions from their perspectives as lawyers rather than as mediators.

All respondents to date have been gracious in giving up their time for the interview and no interview has been conducted under pressure of the lawyer’s time or haste due to the need to meet other commitments. All respondents have been forthcoming with their personal views which, in some cases, have been expressed strongly and in some cases with surprising frankness regarding some quite sensitive personal issues.

As might be expected in a study which involves a large measure of self-reporting, all respondents have reported positively in relation to the idea of mediation, though there were significantly divergent views about the efficacy of mediation and how the process ought to be run.  A recurrent theme throughout has been a criticism of the facilitative nature of mediation and the absence of coercive pressure from the mediator to settle.  Speaking of his view of how mediation ought to be conducted, one respondent had this to say:

I want a mediator who is going to be proactive in resolving the issues. They are the ones who are successful and they are the ones who …….They are the ones who have results and some satisfaction between the parties and you really need to push hard to get a settlement.

Another respondent said this:

I have a view that it’s good for the mediator to have a view. I think that one of the first things that’s taught to mediators at mediation school is not to have a view – they are just there to facilitate the parties coming together….And I am quite happy to pay all the money to get a mediator who will have a view and who will be respected, such as a retired judge or retired senior counsel or, they don’t have to be a senior counsel, but have been a barrister for a long time. And I certainly believe that to express a view a mediator needs to express the view in a controlled way but I am of the view that mediators with a view are very helpful to the resolution.  If a view is expressed in the right way at the right time it is very helpful.

It is too early in the study to draw any firm conclusions about the underlying assumptions which underpin these sentiments. However, it is noteworthy that criticisms of mediation theory and the facilitative nature of dispute resolution in general were invariably cast in the language of distributive or ‘zero-sum’ bargaining.[8]  In response to questions asking about what matters should be considered in formulating resolution proposals, most respondents spoke of “the range” or the anticipated determination should the matter run to trial.  It was only later when the interrogator asked specifically about non-legal issues, that some respondents were prompted to introduce a conversation about emotional concerns, litigation stress, financial anxiety, appetite for risk, health issues and other contextual concerns which are implicit in most cases of conflict.Even then, those concerns were usually introduced in a distributive manner and equated with a direct cost or at the expense of what a client might otherwise have expected to receive “within the range.”

That is not to say that legal matters should be disregarded. Clearly, when a case is being litigated one of the major concerns of the parties must be what will happen if they fail to reach agreement and the case has to be determined.  However, the point here is that most respondents showed a tendency to be preoccupied with the anticipated court outcome and this may have had the effect of excluding from their consideration other potential extra-legal solutions which might have been available in a mediation or other ADR process.

Triumphs

Even at this early stage of the study, it is possible to identify both some triumphs and some challenges. Assuming the glass to be half full, let us look briefly at some of the triumphs.

It is important in any qualitative study which comprises personal interviews that the interviewer is able to prepare well for the interview, manage the interview capably and confidently, engage with the respondent and ask meaningful and thought provoking questions which will elicit the sort of information which is required to give meaning to the study. None of this comes naturally. It is a learned skill which is acquired only with practice and reflection.  Even after thirty years of legal practice in which many hours of professional time were spend interviewing people in various situations for different purposes, it was nevertheless of benefit to have had the opportunity of undertaking an interview techniques workshop under the tuition of Professor Simon Halliday at the University of New South Wales.  Participation in that workshop has paid significant dividends in that the course of the research interviews has been efficient, painless, comfortable, engaging and incisive in that much valuable information has been disclosed and the interviews themselves have been well received.

Ethics applications are sometimes perceived as unnecessarily bureaucratic and cumbersome, especially with low risk research where many of the ethics considerations appear to have little or no relevance to the empirical work. However, upon reflection, it is clear that they have an important role to play in reminding researchers of the need for personal organization, stringency and rigour in the manner that data is collected and the study carried out.  In the present study it was determined to make up a separate file in relation to each respondent so that appointments could be noted, email, telephone and other administrative contact could be recorded and the signed participant consent forms retained.  The file also serves as a convenient check list to ensure that all necessary action has been taken and the consent forms are signed. In this way, there is a complete record of the research which can be audited for intellectual rigour and authenticity should the need ever arise.  The system also allows easy de-identification and re-identification of data for inclusion in presentations and progress reports such as this.

Challenges

The study has also disclosed some challenges, a few of which are discussed below.

In the first place, it should be observed that, as noted above, the respondents are in no sense a homogenous group who occupy themselves in similar or even remotely related, litigious tasks throughout a routine week of legal activity. The draft list of questions to which so much thought and consideration was given in the preparation and which was approved by the Ethics Committee, totally failed to take account of the fact that some questions which address specific areas of the law such as equity cases or personal injury, simply have no application to people who have never practiced in that area of the law.  In consequence, it has been necessary to adjust the questioning “on the run” to take account of those anomalies and do so in a manner which is consistent with the Ethics Committee’s approval.  Fortunately, thanks to the foresight of the project’s supervisors, the Ethics application was framed broadly enough to accommodate this contingency.  The lesson to be learned though is a good one.  When seeking approval of a questionnaire to be used in personal interviews, it is a good idea to seek approval of questions “along the lines of the questions indicated in the draft interview” so that any minor departures from the script of the kind rendered necessary in this study can be accommodated without the need to return to the Ethics Committee for amendment of approval.

Secondly, the transcription of the audio recordings has been challenging. Each interview occupies approximately one hour.  The briefest interview occupied thirty one minutes and the lengthiest was one hour and four minutes. Every hour of interview time consumes approximately six hours of transcription time.  Consideration was given to seeking funding to outsource the transcription to professional transcription service providers but, for the following reasons, that decision has been deferred, at least for the moment.

This researcher lives under the disability of a significant hearing defect. Sometimes, it is difficult to capture every word of the interview through the medium of natural hearing, though experience has proven that recorded interviews can later be replayed at volume and any material missed collected by listening to the audio recording through headsets. Whilst this has the slight disadvantage of not being able to pursue further questioning if something important is not captured during the interview, that disadvantage is more than offset by the time saving in not having to interrupt the flow of conversation and protract the interview time by asking a respondent constantly to repeat answers given during an interview.  The task of physically transcribing the interviews, tedious though it is, allows a thorough examination of the data and identification of emerging trends that may be important to the study.

A further challenge in dealing with the transcript is one that would be familiar to all transcription typists and court reporters. It is that the spoken word is fundamentally different from the written word and that is a challenge which should be recognized and addressed by all researchers who collect data in the form of transcribed records of interview. The spoken word does not use punctuation or script or formatting and, very often, we do not speak in complete sentences.  Questions arise as to how literal the transcription should be.  For example, do we include embolalia that appears in almost all speech – or do we ignore it and try to create a clear and meaningful sentence from what may have been a hesitant and thoughtful reply which may have been reconsidered even as it was given?  An example might be: “Well, yes, I err, think that.., well, ah, let me put it this way…well let’s just go back a step…” and so on.  One respondent in the present study, anxious to ensure that he was supplying information which was of interest, kept interrupting himself mid-sentence to say: “Now if this is not answering your question, please tell me.”

A further complexity of the transition from the spoken word to the written word is the tendency of respondents who are asked to give examples of things to ply back and forth between first person and third person speech often without notice so that it becomes quite confusing to work out who actually said what to whom. An example might be: “Well he came in and said: ‘Can you act for me?’ and I said yes but he would have to give me proper instructions. You know that means completing a financial statement” and so on.

These may seem to be somewhat pedantic matters but, in the interest of preserving personal integrity, faithful reporting and intellectual rigour, they are matters which need to be addressed lest we inadvertently misrepresent the data which has been supplied to us.

In order to meet these challenges, a conservative approach has been adopted and a literal transcript of his/her interview has been provided for the approval of each respondent.

Conclusion

This is an exciting project because, although still in its early stages, there is some evidence to confirm the hypothesis that, even now in 2016, with all the accumulated wisdom and experience we have gained through research into mediation, there is a reluctance or inability on the part of the legal profession to engage with ADR on its own terms or otherwise than by reference to the established rule-based norms of the conventional justice institutions as viewed through the prism of adversarial glasses. Whether that is a trend which will continue as the research progresses remains to be seen.

 

John Woodward,

University of New South Wales

 

 

 

 

 

[1] See F Donohoe III Lawyers as Gatekeepers: Mediation and the ADR Processing of Environmental Disputes PhD Thesis, University of California, 1997

[2] L Coser The Functions of Social Conflict (New York, Free Press, 1956) at p.8

[3] J Rubin, D. Pruitt and S. Kim Social Conflict: Escalation, Stalemate and Settlement 2nd ed. (New York, McGraw-Hill, 1994) at p.5

[4] K Avruch Culture and Conflict Resolution (Washington, US Institute of Peace Press, 1998) at p.24

[5] See, for example P Condliffe Conflict in the Compact City: Preferences and the Search for Justice PhD Thesis, Victoria University, 2011.

[6] J Macfarlane The New Lawyer: How Settlement is Transforming the Practice of Law (Vancouver UBC Press, 2008) p.96

[7] Ibid p.109

[8] P Condliffe Conflict Management: A Practical Guide (4th edition, Sydney, Lexis-Nexus-Butterworths, 2012) p.174

Symbolism and Justice: The South African Constitutional Court

The design and art of a courthouse communicates a great deal about the culture and values of the institution contained within it.  Last month I had the incredible opportunity to visit the South African Constitutional Court in Johannesburg – an institution that is itself a potent symbol of the country’s attempts to move forward in the aftermath of the apartheid era.

The design of a place of justice cannot repair the harm to South African society that was brought about by apartheid, but it does serve as a symbol of restorative justice – and a deliberate attempt to make all South Africans feel more welcome in a government building.  The design was chosen after a public competition, with the winning, young South African architects designing the building inspired by the concept of ‘justice under a tree’.  This is reflected in the physical design of the building and pays homage to traditional dispute resolution processes used by the people of South Africa.

The website for the Court explains the way in which the architecture was very deliberately designed to be inclusive as well as symbolic:

The Constitutional Court’s new home was born of a remarkable and uniquely inclusive process – one that resulted in a public building like no other. This structure, South Africa’s first major post-apartheid government building, was designed to embody the openness and transparency called for by the Constitution itself.

The building is noted for its transparency and entrancing volumes. In contrast to most courts, it is welcoming rather than forbidding, filled with sparkle and warmth. It has no marble cladding or wood panelling, but has come to be admired for its graceful proportions. And the principal materials – timber, concrete, steel, glass and black slate – infuse the court with an African feel.

Below are some of my photos with captions describing the architectural and artistic elements of the Court:

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Constitutional Hill sits on the site of the old fort and central prison dating back to the colonial era in the late 1800s.  Two prison museums  explain the harsh conditions of everyday life and the arbitrary laws that led to the arrest of thousands, including Ghandi and Mandela.

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  Entrance to the grounds are through the original prison doors, with the old prison windows visible.  

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These are the very large carved wooden doors that are the entrance to the court building itself.  They stand about eight meters high

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Engraved in the doors are depictions in words and sign language of the 27 rights contained in the South African Bill of Rights. There are Braille carvings on the door handles.

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Another view showing the seating of the public compared with the judges.  You can also see here the brick walls of the court room, which were salvaged from the prison that stood on the site of the court.  Reminders of South Africa’s political past are visible everywhere.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

I was particularly intrigued by the font.  This was specially commissioned for the Court, and designed to be different from the traditional ‘official’ fonts used in government and legal documents.  The photo on the left shows the name of the building in all the languages of South Africa.

For an interesting piece on Australian court design, and engaging principles of therapeutic and restorative justice, see this article by Professor Graham Brawn.

 

Sex, Gender and Sexuality diversity in mediation (and other human services)

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At the 2016 National Mediation Conference Olivia Rundle will be giving  a presentation drawn from a just released book called Sex, Gender, Sexuality and the Law, on behalf of the authorship team of Samantha Hardy, Olivia Rundle and Damien W Riggs. Professor Gillian Triggs, Human Rights Commissioner, writes in her Foreword:

The point is well made by the authors in this ground-breaking publication that the law  is not effective for the vast majority of those in the LGBTI community who experience discrimination, and who fail to report it. It is for this reason that community attitudes must change through education and evidence-based understanding of the damaging effect such discrimination has, not only on the immediate victim, but also on their parents, children and extended family and friends. The authors have gathered together all available evidence of discrimination against the LGBTI community in Australia and have put their research to highly practical use. They have provided detailed advice for practitioners – lawyers, mediators, the courts and service providers – who work with those who have been marginalised on the basis of their sex, gender, or sexuality.

Our book draws together legal and social science literature, legislation and case law to explore the legal treatment and common life experiences of people who are trans or gender diverse, intersex and/or non-heterosexual. We have deliberately avoided lumping together the distinct categories of sex, gender and sexuality, instead clarifying the specific characteristics that are relevant to topics that we discuss in the book. We start by explaining the terminology that we use, explore issues that affect individuals, then couples, then families who include a person who is trans or gender diverse, intersex and/or non-heterosexual. The final part of the book provides advice to professionals about how to improve the way that they deliver services to clients who may be trans or gender diverse, intersex and/or non-heterosexual.

The book project was inspired by some research results from a small pilot study in Victoria. The study invited mediation practitioners, potential and actual clients to contribute their ideas and experiences of mediation services. The results suggested that there was a gap between mediators’ perception of the suitability of their practice for diverse client groups and the actual needs of clients who are trans or gender diverse, intersex and/or non-heterosexual. In short, the mediator respondents demonstrated either discriminatory attitudes or ignorance of the way that they assumed that all of their clients were cisgender and heterosexual (and therefore did not practise in a way that was inclusive of trans or gender diverse, intersex and/or non-heterosexual clients). Some false expectations about non-heterosexual people were also evident in the results. The survey results have not been published before, but are discussed in Part 4 of our book.

There are largely unconscious assumptions in most contexts that people are either male or female, are the gender that was assigned to them at birth, that their intimate relationships are heterosexual, and that children are parented by a mother and a father who are both heterosexual. The pervasiveness of these assumptions has the effect of alienating and/or discriminating against people who do not fit into those categories. Furthermore, cisgenderism and heterosexism perpetuate an expectation that to be legitimised, people who are not cisgender and heterosexual must perform stereotypical expectations of being a heterosexual cisgender person, a heterosexual cisgender couple, or that children should experience as close as possible the heterosexual mother-father parented nuclear family. In her Foreword Professor Triggs notes:

The authors observe the paradox that, in order for the LGBTI community to have
their sexual orientation and diversity respected, it has become necessary that they
demonstrate how similar they are to traditional heterosexuals.

Our book challenges practitioners to engage in critical reflection upon the assumptions and expectations that they bring to their practice, and to learn different, more inclusive ways of engaging with their diverse community of clients. We hope that all practitioners, scholars and students who read our book will learn new information that will equip them to celebrate and improve the way that they work with the beautiful diversity in our society.

The revival of Bedouin customary legal processes in Jordan

Yesterday I had the pleasure of listening to a Three Minute Thesis presentation by one of our higher degree research students who is exploring Bedouin customary legal practices and processes in Jordan. It caused me to reflect on the indigenous origins of many ADR processes and also the importance of  identifying where these community practices still exist, understanding how they work, and exploring their contemporary power and potential

Munther Emad describes his PhD project as follows:

“There are a range of Bedouin customary law practices in Jordan and other Arab societies, including neighbourhood groups, delegations of wise elders delivering oracles to assist community groups to resolve their own disputes, victim-offender mediation, tribal councils and inter-tribe negotiations. These differ between Bedouins in the Negev-Naqab desert and urban dwellers in Middle Eastern cities. Some of these have similarities to restorative justice practices in that they operate on the margins of or outside the official legal process, they confront the offender with the victim, include community representatives, explore outcomes that restore social harmony and involve participants in decision-making. They deal, in varying degrees, with concepts like repairing the harm, facing up to crime and collective responsibility.

The purpose of this research is to examine the system of Bedouin customary law practices particularly within the context of ‘Jordanian model’ in terms of how they operate and evolve in contemporary society. The research utilises the lenses of ‘restorative justice’, ‘legal pluralism’ as well as ‘access to justice’ in order to critique Bedouin customary law and predict the prospect of these practices in the future of both Jordan and the Middle East. For this reason, this research draws on the lessons learnt around the world with regard to how indigenous customary laws are currently being utilised. The narrative of this research is articulated through a storytelling style in order to best describe the nature of Bedouin customary law, thus a number of stories are utilised throughout the research. It also involves explaining the features of Bedouin customary law ‘in the shadow of the law’, supplemented by ethnographic observations and interviews with a diverse group of community leaders.”

Munther’s research has the potential to contribute to our understanding of how and why these processes work in a contemporary setting and to consider their continuing relevance.

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Closer to home there is a growing understanding of Aboriginal dispute resolution practices, documented by NADRAC in its 2009 report Solid Work You Mob Are Doing: Case studies in Indigenous Dispute Resolution & Conflict Management in Australia and illustrated in the “Solid work” Indigenous Mediator Forum by Maureen Abbott, Sharon Anderson, Helen Bishop, Nelson Mungatopi, Kurt Noble & Madhu Panthee at the 2014 National Mediation Conference.

The peaceful resolution of conflict is also deeply embedded in Islamic religious texts and practices. We need to better understand these parallel systems and how ‘Australian Muslims can better navigate their way through the two legal settings that they wish to comply with’, and to explore how  family dispute resolution process might be adapted to meet their needs, as Ghena Krayem argued in her 2014 empirical study  Islamic Family Law in Australia.  These processes are not without their risks and challenges, as Sami Bano has documented in her 2012 research Muslim Women and Shari’ah Councils, Transcending the Boundaries of Community and Law.  Marion Boyd’s 2004 report Dispute Resolution in Family Law: Protecting Choice, Promoting Inclusion  of the Canadian debates about these matters demonstrated that the issue is fraught and contentious, and there may not be much appetite for publicly canvassing these matters currently. However, there is potential for considerable professional and community benefit in exploring if and how community, indigenous, religious and mainstream dispute resolution practitioners might learn from one another.

 

 

Why story-telling matters to justice and to dispute resolution

The July 2016 NSW Law Society Journal carries an interview by Julie McCrossin with the very accomplished Professor Larissa Behrendt, Chair of Indigenous Research at the UTS Jumbunna Indigenous House of Learning.

The article begins by reminding us that Behrendt is a storyteller and indeed she is. Talking about stories as a tool for justice, she comments that part of the significance of her work is to demonstrate that ‘there is such as important role for storytelling to play in law reform’.

To illustrate her theme, Behrendt draws on the recent request to the New South Wales Attorney General, by the Police Taskforce working on the Bowraville cases, to make an application to the Court of Appeal seeking to quash the acquittal and advocating a new trial.

Achieving this has been a long road and Behrendt (who worked with the Bowraville families at Jumbunna) credits the outcome as the triumph of storytelling over legal argument.

She says

‘There is such an important role for storytelling to play in law reform. As lawyers, we are so good at thinking about legal arguments, but there are so many things I have learnt from the Bowraville families and one of those things is that their stories are more powerful than my law’.

The story is compelling reading – not just for the insight into Behrendt’s work with indigenous families. It is a reminder to those of us practising and researching in the ADR field that storytelling offers power to persuade in circumstances where facts have been unsuccessful.

The early champions of ADR did us a great disservice when they promoted a benefits bundle of cheap and quick. We continue to suffer the consequences of this error of judgement. The proliferation of ADR services that are cheap and quick has left many disputes unresolved despite their advocates recording that they have been ‘settled’.

Reading the daily newspaper reports of the coronial inquest into the Lindt café siege should be all the proof we need that stories can achieve what facts cannot. All of us are stakeholders in this inquest. Indeed there are so many stakeholders that the inquest now has its own web address http://www.lindtinquest.justice.nsw.gov.au/.

One of the reasons the inquest has been continuing for such a long time (since it began in May 2015) is that, apart from seeking factual evidence about what happened, there is a lot of healing that can’t happen until we have exhausted the well of stories that need to be told. Initial attempts to make this an efficient process have given way to entreaties from the public and the families of the hostages and the hostages themselves. One of the most tragic and consistent themes from the stories of hostages is that they felt abandoned and believed that no-one was ever going to come to their rescue. If changes are to come to how police deal with hostage taking and hostage takers, it won’t be as a result of the forensic examination of the facts – it will be because of the extraordinary power of the hostages’ stories and the resulting damage to public confidence in the police to rescue us from harm. This will be the driver to force the police and government to do things differently and better.

Although stories like Behrendt’s are all around us, reminding us of the power of story-telling, sadly, the ADR processes that are happening in the shadow of the law have seemingly adopted the fact based approach that characterises litigation. A review of position papers commonly exchanged by lawyers prior to mediation makes it abundantly clear that much of the mediation world in the hands of lawyers is just litigation in another forum. It is disappointing to see the promise of mediation so consistently frustrated. Surely we recognise by now that while facts matter, ADR provides a golden opportunity to look past the objective data of the facts to the subjective experiences of the parties.

Story-telling courses and conferences abound in law schools in America and the United Kingdom and the ABA has a number of publications devoted to this field. It is hard to find any evidence of such programs in law schools in Australia. However there are numbers of programs and conferences in the social sciences arena. Resolution Institute (formerly LEADR) has been publicising a general conference being hosted at Melbourne University in November – http://www.thestoryconference.com.au/program/

Perhaps the next step is for law schools to take a lead in influencing professional practice by partnering with other faculties (such as the program sponsored by the RMIT University School of Media and Communication) which have experience in delivering storytelling skills via experiential learning. It is time to ensure that this powerful tool of persuasion is embedded in ADR best practice.

 

 

 

 

 

 

 

Is robotic or online dispute resolution the future?

A recent ABC radio program titled Robot lawyers could make time-consuming, expensive court conflict thing of the past outlined a brave new world where artificial intelligence technologies can ‘mediate everything’ including divorce and child custody. A Dutch program has been introduced in Canada to resolve debt and tenancy issues, and in the Netherlands it is used to sort out family law issues, including child support.  Where the matter was sensitive, it could be referred to a ‘trusted advisor’ who would act as an online mediator.

This program, and other online methods of dispute resolution, are touted as empowering clients and promoting access to justice for those who cannot afford to litigate and who don’t qualify for legal aid, and thus ultimately enhancing democracy.

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The recent KPMG report for the Commonwealth Attorney General Future Focus of the Family Services  also explores the benefits of online technologies for resolving family disputes. Telephone and online dispute resolution of family disputes are already firmly embedded in family services provided to rural and remote clients, and the report notes that in an increasingly digital world, ‘agencies and their providers can adapt and use technology to engage with citizens in shifting business models from reactive, to proactive or customer driven’.  Digital or online services may enhance accessibility for people in remote locations, but also benefit shift workers, at home parents, those at risk of violence and people with disabilities, the report argues. There is no doubt there is enormous potential here for greater access and immediacy, and for reducing costs for the community and disputants, and even for promoting safety, but there are also risks that need to be carefully evaluated.

The issues relating to online dispute resolution are not dissimilar to those associated with dispute resolution generally, although the online context may exacerbate or minimize some of these risks. The National Alternative Dispute Resolution Advisory Council considered some of these in 2002 in its Dispute Resolution and Information Technology Principles for Good Practice. Using the framework often used for evaluating dispute resolution it discussed some of the risks:

  • Accessibility: whilst access will be enhanced for some, some who are vulnerable may not be able to access such resources or the tools to access them, especially those with low literacy, older people, from some cultural communities. The access of those in rural and remote areas will depend on the reliability of high bandwidth telecommunications.
  • Fairness: NADRAC notesInformation technology may neutralise some sources of power through removing some of the dynamic associated with face to face communication.’ Some parties may be empowered, but in other situations power imbalance may be created or exacerbated. Those unfamiliar with the technology may be pressured into decisions. Men, who often communicate for factual information, may be favoured over women whose communication preference is generally relational, as this may not be well supported by online technologies. Where parties are remotely located one or both may ‘more effectively mask their feelings, delay responses or manipulate the environment’, and the mediator not be able to respond appropriately or even handedly if they are not able to read the parties as effectively as if they were in the same room. It may be more difficult for the mediator to establish impartiality and trust in an online context.
  • Effectiveness: this begs the question of effectiveness for whom? From a party perspective, online DR may be quick, accessible and cost effective, and ‘cheaper’ justice is also a positive community outcome. If self determination is the key objective of mediation, then online communication may sometimes facilitate this (it may assist parties to slow down, reflect and focus on issues rather than personalities, and feel safer) or obstruct it (because nuance is lost, complex emotions not conveyed, or communication is stilted or constrained, and a sense of finality and formality absent). If the full communication and closure is not achieved, then outcomes may also be compromised.

So whilst there are benefits to online dispute resolution, and even robotic determination of disputes, we must ultimately consider whether these processes are likely to achieve party self determination. Self determination assumes the parties are autonomous and rational decision makers. Participation is voluntary and direct, and the parties control the content and outcomes where they make voluntary, consensual and informed decisions. The degree of voluntariness will vary depending on the legal frameworks governing the dispute. Informed consent will be achieved if online dispute resolvers, including robotic ones, and service providers can ensure:

  • parties are educated about the nature, purpose and processes of the dispute resolution and any factors that will affect the process;
  • that parties understanding this information; and
  • that the dispute resolver continues to monitor party consent, especially if either is unrepresented, or if their capacity or autonomy is compromised or influenced in some way, or where their participation may not be voluntary.

If these standards are able to be achieved, then online dispute resolution may be able to achieve it’s participatory, cost saving and self determinative goals.

 

 

Lawyers’ ability to “Collaborate Effectively”

This post has been contributed by Dr Olivia Rundle and Dr Brendan Gogarty, of the Faculty of Law at the University of Tasmania.

Dr Olivia Rundle made a presentation at the Australasian Legal Teachers Association Conference 2016 about a Teaching Development Grant project that she is working on together with Dr Brendan Gogarty, and Alex McKenzie, a Tasmanian legal practitioner. Our project concerns the meaning of Australian Law Threshold Learning Outcome (TLO) 5(b), which states that “graduates of the Bachelor of Laws will be able to collaborate effectively.” By contrast to Australia, there are no standard learning outcomes prescribed in New Zealand, and the Faculty of Law at the Victoria University of Wellington (where the conference was held) states that its graduates “should have an understanding of the need for collaborative and cooperative behaviour in professional life.” Framing the graduate attribute in this way does not require the VUW Faculty of Law to assess students’ ability to collaborate, merely their awareness that it is needed in practice.

We want to unpack what TLO 5(b) actually means in the context of legal practice. Our project will inform our practice-centric teaching programme at the University of Tasmania.

Relevance to Dispute Resolution Research

The ability to collaborate effectively – or “work well with others” – is a foundational skill that is applied in dispute resolution contexts. Lawyers frequently engage in activities that contribute to the resolution of their clients’ disputes in the ordinary course of legal practice. Dispute resolution research will benefit from an improved understanding of the way that lawyers collaborate in general legal practice.

Do lawyers collaborate?

One of the reasons the TLOs have not been adopted as pre-admission requirements by Law Admission Authorities is that some senior members of the legal profession expressed concerned that many successful lawyers would not meet the threshold standards. In particular, the ability to “collaborate effectively” was singled out as something that many exceptional lawyers “do not, cannot or are not inclined to” do (Justice Slattery quoted in Steel, Huggins and Laurens). The immediate response of many practitioners we’ve talked to so far has been: “lawyers don’t collaborate”.  That seems to be a relatively widely held view (although not universal).

We are confident that the ability to collaborate effectively is an inherent requirement that all lawyers need, despite such claims from within the profession. Forms of direct and indirect collaboration in legal practice include: intra-firm collaboration, between lawyers (especially within the hierarchical nature of firm structures ) as well as between lawyers and other professionals working in the firm (i.e. conveyancers and administrative staff); inter-firm collaboration; between lawyers on either side of a dispute; intra-professional (solicitor to barrister); inter-professional (between lawyers and officers of the court, experts, medical professionals, accountants etc); and of course with the client.

Particular influences on collaboration in legal practice

There are some features of legal practice that have an impact upon the need for lawyers to collaborate effectively. These include joint and several responsibility and the obligation to provide legal representation within firms. Other features of legal practice can have a negative impact upon lawyers’ collaborative behaviour. They include time billing and targets (an individual activity that works as a disincentive to working with others within a firm) and competing responsibilities to the client, administration of justice and business partners/supervisors (these tensions push and pull incentives to collaborate).

UTAS Collaborate Effectively Image

Our teaching development project

Our teaching development grant is enabling us to investigate, evaluate, create and disseminate an evidence base and resources that support students to become competent in engaging with the unique challenges of working in teams within a firm environment. Our project involves the following activities:

  1. Literature reviews of teaching standards, collaboration in legal practice;
  2. Audit of collaborative learning activities, assessment tasks and instruction;
  3. Liaison with students, legal professionals and teaching experts.

Part 3 will include a focus group with Tasmanian legal practitioners where we will ask them to discuss questions that will reveal how they collaborate with other people in the course of legal practice within firms, with clients, with other lawyers and legal institutions, and with non-legal professionals.