Open letter of thanks and appreciation #ADRRN18

By Jo Burnett, Research Masters student, Southern Cross University

The ADR Roundtable 2018 was a network event and conference on the Sunshine Coast in Dec. I came across this event by chance when looking for resources in ADR for research purposes.

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Jo presenting her paper at the ADR Research Network meeting on 4 December 2018

Submitting a draft paper for presenting was a new and exciting prospect for me and I was unsure of the format, audience, members and a little intimidated by many of the esteemed academics and authors submitting and blogging on the ADR blog site.

The organisers Dr Sue Douglas and Dr Lola Akin Ojelabi, and commentator and co-founder Dr Becky Batagol were in contact early through email and very reassuring and approachable.

First contact was a group meal on the evening beforehand and gave us all a chance to meet and greet in an informal and friendly way over dinner and drinks, this was a great idea and not knowing anyone, helped me enormously to settle and get to know everyone. The meal on day two was also a great time to relax and get to know everyone.

coffee ADR 2018

Jo and Drossos deep in discussion: Chats over coffee before the days starts are a great way to get to know other members and continue conversations from the sessions

First day arrival at The University of the Sunshine Coast was terrifically relaxed with great facilities and a warm friendly atmosphere.  The quality and range of speakers and presentations was exciting.  A number of changes were discussed with all the attendees and the program was altered to suit the number and requests of the attendees, making this a truly collaborative event.

ADR Roundtable Dec 2018 Sunshine Coast

Group discussion on each paper is a central feature of the network roundtable format

The quality and industry expertise of all the presenters and the range of presentations and research was astounding.  For a new researcher in the field, this event, the contacts and exposure has been  invaluable and all in the interest of building capacity for and in researchers in the DR field. Again, a big thank you for the organisers and founders who provide their time and expertise on a voluntary basis.

ADR rountable dec 2018

Mary Riley, Janet Barnes and Becky Batagol in the audience

I will definitely being attending next year’s event in Dec 2019 and will be further along in my research journey, with a big input from the feedback of the commentators, chair and attendees who’s feedback has been of great value and merit to my research.

Anyone who is conducting research in this field would find great benefit in attending, for me, this experience and contacts have been unbelievably rewarding.

Thank you all.

 

j burnett PHOTO (1)Joanna Burnett has been a professional Social Worker  for 15 years, receiving her undergraduate degree in 2003 from Deakin University in Melbourne.  Prior to receiving her degree, Joanna had been working in the northern NSW local magistrate’s courts supporting women experiencing domestic violence in a court support role in a women’s service, non-government agency since 1998. Joanna worked in a mental health and dual diagnosis hospital for the past 10 years and gained a Master degree in Forensic Mental Health through Griffith University in 2013. She continues to work in her private practice across NSW/QLD border as an AASW accredited family violence and mental health social worker as a counsellor.For the past 12 months, Joanna has been working with a family law firm in a mediation program in a family violence screening and assessment role and is enrolled in a Masters of thesis (Research) with Southern Cross University conducting research in family violence, FDR and Social Work.

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Mediation in Chains #ADRRN18

This post celebrates the second day of our 7th annual Australian Dispute Resolute Research Network meeting today at the Faculty of Law, University of the Sunshine Coast. Please follow the papers at the workshop on Twitter via the hashtag #ADRRN18 and via our Twitter account.

We live posted this blog today.

John will be presenting a paper in the topic of this blog post today.

Party self-determination has traditionally been valued as a core fundamental element of mediation.  Under this vision, it was assumed that parties would be the principal actors in mediations to resolve their disputes, that they would actively and directly participate in communication and negotiation, that they would choose and control the substantive norms to guide the process of their decision making, that they would create the options for settlement and that they would control the final decision as to whether or not to settle the dispute.[1]

chains

Mediation in chains: photo courtesy Jev55 CC BY-NC 2.0

As mediation has developed and become integrated with the traditional justice system as a dispute resolution option, the emphasis on self-determination has diminished somewhat in the context of conversations around what the law would do and how the dispute would be resolved at court.  This is an understandable response because, as mediation theory recognizes, one of the significant empowering elements of any mediation is to calculate the best alternative to a negotiated answer (BATNA).  In the context of a court-connected mediation that consideration obviously includes the possibility that if the dispute is not resolved by agreement, it will be determined by a court, a fact of life which cannot be ignored.

This trend of diminishing emphasis on self-determination prompted Harvard Professor Nancy Welsh to question whether we should consider redefining the notion of self-determination and to recognize that evaluative mediation is becoming more accepted in the court-connected context where, inevitably, lawyers will have a greater role in advising their clients and recommending a settlement that aligns with what the courts would order if the dispute is not resolved at mediation.  Welsh’s solution was to suggest that the effects of what she calls “muscle mediation”[2] might be ameliorated if we modified the current existing presumptions about the finality of mediation and imposed a mandatory three day “cooling off” period during which any of the mediating parties would be free to opt out of the mediation agreement.

Empirical evidence gathered in the form of personal interviews with litigation lawyers in New South Wales in 2016-2017 has confirmed the existence of a trend away from disputant self-determination in court-connected mediation and a tendency for lawyers to take control of mediation sessions and to discourage disputant participation and, in some cases, to refuse to allow their clients to speak at all during mediation sessions.

It is also evidenced by the return of lawyers to mediation events, the persistence in using adversarial language and terminology in mediations and the preference among lawyers for the selection of retired judges or senior counsel as mediators in their clients’ disputes.  The research revealed that it is quite common for disputing parties to attend mediation events accompanied by both solicitors and barristers and to be prepared to say nothing unless questioned by their own legal representatives.

In a forum which is designed to focus attention on parties’ joint interests and consensus building, it is common for lawyers to “open” by reading “position statements” which, contrary to the spirit of mediation, traverse the legal issues, to declare their clients’ superior positions and then go on to announce magnanimously that they are “here today to compromise and to settle the case.”

Unsurprisingly, in mediations where this is a typical scenario, the parties then separate into break-off rooms and the mediation continues as a shuttle mediation where negotiations proceed on a zero-dollar basis and end up somewhere in the middle.

The research revealed that these behaviours are prompted by lawyer persistence in clinging to a defensive posture where nothing is given away and no concessions are made except for a pre-considered and planned purpose.

As mediator respondents to the research pointed out, this runs contrary to the principles of integrative bargaining and consensus building which are valued by mediation theory.  It does nothing to  “…allow a full and frank discussion about what is going on for the parties.” [3]

The research also revealed that lawyers give very little thought to the choice of a mediator, very little advice to their clients about what to expect in mediation or how to prepare for it, and little or no thought to anything which might be regarded as extraneous to the legal case (the non-legal factors).[4]  Mediation is therefore presented to the disputant in a rather negative way as being a last ditch effort to achieve an outcome without having to go to the trouble and expense of actually proving the case in court (or the risk of having it proved against you, as the case may be).

The problem for mediation advocates is that, whether we like it or not, lawyers will continue to have a dominant role in advising their clients about the wisdom of court-connected mediation, its forms and processes, its benefits and shortcomings. They are gatekeepers[5] and their views of mediation will continue to influence consumers of legal services whose perceptions of mediation will be viewed through the prism of their lawyers’ advice.

We know from the researches of sociology that lawyer attitudes about disputant participation play a substantial role in determining both the attitudes of their clients to mediation and the likelihood of its success.  In 1986, Carnevale and Isen established by experiment that research respondents encouraged by “positive affect” responded more favourably to bilateral negotiation, achieved better outcomes and were more committed to outcomes than were those who were not encouraged or who were primed with “negative affect.”[6]

If lawyers speak indifferently, or even disparagingly, of mediation then, even when it is ordered by a court or mandated by regulation, the mediation experience is likely to be diminished for the disputants.  If, on the other hand, lawyers speak positively about mediation and advocate its integrative nature and expansive opportunities for dispute resolution, then the process and the disputants’ mediation experience will be enhanced.

The challenge for us as mediators is to encourage co-operative behaviours and to honour the value of disputant dialogue and active participation in mediations.  The challenge for us as educators is to  ensure that there is ongoing access to appropriate educational opportunities for lawyers who are in litigation practice.  If we are not able to achieve those objectives, court-connected mediation will to a large extent remain mediation in chains.

[1] N Welsh The Thinning Vision of Self-Determination in Court-connected Mediation: the Inevitable Price of Institutionalization? 6 Harv Negot L Rev 1 2001

[2] Ibid p 7

[3] R33 mediator respondent to the research

[4] S Hardy and O Rundle Mediation for Lawyers (CCH 2010) 117

[5] J Dewar Family Law and its Discontents (2000) 14 International Jnl of Law, Policy and the Family 59 at 76; G Dimopoulos Gateways, Gatekeepers or Guiding Hands: The relationship between Family Relationship Centres and legal practitioners in court management and court process (2010) 24 Australian Journal of Family Law 176; F Donohue Lawyers as Gatekeepers: Mediation and the ADR Processing of Environmental Disputes  (Dissertation in partial fulfilment for the degree of PhD, University of California, 1997)

[6] P Carnevale and A Isen The Influence of Positive Affect and Visual Access on the Discovery of Integrative Solutions in Bilateral Negotiation Organizational Behaviour and Human Decision Processes 37, I- 13 (1986) at p 7

 

Ethnographic Observations of a U.S. Family Court Mediation Service #ADRRN18

by Associate Professor Alexandra Crampton, Marquette University

This post celebrates the start of our 7th annual Australian Dispute Resolute Research Network meeting today at the Faculty of Law, University of the Sunshine Coast. Please follow the papers at the workshop on Twitter via the hashtag #ADRRN18 and via our Twitter account. Alex will be presenting this paper today.

In the U.S., most family law is determined at the level of each state.

ADR was first used in family court for marital reconciliation (Salem 2009). By the 1960s, several states provided such counseling through court services, and some programs became mandatory (Foster 1966).

trust

During the 1970s, as law reform introduced “no-fault,” divorce, conciliation services transitioned to mediation services for resolving child custody disputes (Salem 2009). Much of the focus was on reducing acrimony between parties by limiting the adversarial approach of formal legal procedures (Murphy and Singer 2015).

marriage cut up.jpg

In the US, most empirical research on child custody mediation has come from studies of court-based divorce mediation services (e.g. Kelly 2004). The focus was on comparing mediation with court. Family court mediation scholarship continues to center on divorce mediation (e.g. Shaw 2010) The resulting literature is bifurcated between findings of positive results (Emery et. al. 2001) and criticism (Murphy and Singer 2015).

conflict

As mediation became mandatory, many critics left the field. Since the 1990s, studies have shifted from ADR/court comparison to identifying best practices. The most comprehensive recent study was a 2013 court ADR study in Maryland.

Current, empirical research into child custody mediation in the US is rare. ADR studies involving direct observation, recording, and interaction with mediators and parents are even more scarce.

I began an ethnographic study of one family court mediation program in a large Midwestern, metropolitan (population 1.7 million) area in 2011. There are five family court commissioners and ten commissioners who conduct hearings regarding divorce, paternity actions, child custody disputes, child support enforcement, and domestic violence (as a civil action). There are about 11,000 new court filings each year, and about 800 cases of parental disputes that are referred to mediation. The agreement rate is about 50-55%. The mandatory mediation program fulfills a state law requiring that parents who file disputes regarding legal decision-making or child residence must first attend mediation before continuing in the court process. Exceptions can be determined by a judge or court commissioner, such as in family violence cases. The next step in the court process is appointment of a Guardian Ad Litem (an attorney) who makes an investigation and recommendation to the court.

I naively began my research questions where the empirical data largely had left off, which includes a presumption that mediation is a court trial alternative. My research design sustained this presumption, focusing on direct observation and recording of individual mediation sessions as separate from court process.

under the gavel

My research sample has forty-two mediation cases, thirty-six parent interviews (which includes fifteen pairs of parents), and ten mediator interviews. However, it was soon evident that my initial focus on mediation cases and case outcomes reflected a professional perspective, in which mediation is distinct from the overall legal process. Parents, meanwhile, were experiencing mediation more inchoately as it became part of their lives—and typically as a mandatory process embedded within a legal decision that one party had requested the court to make. Over time, the work has become more ethnographic, requiring greater immersion within court hearings, ongoing conversation with professionals and informal follow up with parents.

John Dewar  noted back in 1998 that family law is quite chaotic. My analysis has turned to sorting through the chaos of mediation as embedded within family law, which, in turn, is embedded within an even larger chaos of parenting and family. This was once famously described in Zorba the Greek as “the full catastrophe.”

Reflecting back to the original goal of the family court as a I find that mediation not only brings parents in conflict together but also brings them into a court intervention that neither party sought and which therefore can bring mixed results.

The old ADR debates centered on benefits and risks as if mediation itself was either a generally good intervention or not. And this evaluation was generally within comparison with court-based decision-making as if the court trial was a common option (e.g. Pearson 1982).

Today, however, the court trial is kept from parents, in part by using mediation as a “speed bump.” In general, family court mediation persists as a conciliation service, attempting to shift parties from an adversarial stance to one of cooperation or at least parallel parenting. Although parents are no longer encouraged to marry or stay married, they are expected to share parenting, which brings them back together.

The most surprising outcome of this research, then, has been how mediation brings parties back to a nuclear family form. The difference from the 1960s is that parents are mandated to mediation rather than marital conciliation – and the similarity is a concern for child welfare (written in law as the child’s best interests).

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This pressure is met variably by parents who also vary in how savvy they are about their options for refusal. This means that family court mediation is not inherently empowering or coercive but rather depends upon the goals and interests of parents as they engage in conflict through a legal case that has been diverted to mediation.

My current work is to update the old research frame of evaluating mediation vs. court to better analyze the implications of ADR as embedded within family law, family court process, and the “full catastrophe” of family.

Alexandra Crampton is an Associate Professor in the Department of Social and Cultural Sciences Sciences at Marquette University in Milwaukee, Wisconsin. She holds a Masters degree in Social Work and a joint Ph.D. in Social Work and Anthropology from the University of Michigan. Her past research was on elder mediation in Ghana and the US, and her current research is on family court mediation in the United States. She was a Visiting Research Associate in the Murdoch School of Law during June-August 2018.

Contact information: alexandra.crampton@marquette.edu

What Makes Us Whole #ADRRN18

On Monday 3 December, around 25 excited dispute resolution scholars will gather on the Sunshine Coast, Queensland for the 7th Annual Roundtable of the Australian Dispute Resolution Research Network.

This is a meeting that provides respite for many of us. It is an academic experience designed to support dispute resolution research and researchers and to provide high quality, critical feedback on the papers presented there. It is so rare to find a scholarly forum where the emphasis is on feedback and where research development is central.  You can see details of our previous meetings here.

In 2018 we are being hosted by Dr Susan Douglas of the University of the Sunshine Coast. Dr Lola Akin Ojelabi is the co-organiser of the roundtable. We are excited to welcome a number of international ADR scholars again, showing how attractive our forum is to dispute resolution scholars internationally. It is also wonderful to see so many PhD and research students presenting. We take the responsibility of providing a rigorous academic apprenticeship seriously.

Papers in the 2018 program include:

  • Laurence Boulle and Rachael Field: Rethinking Mediation’s Fundamental Value of Self-Determination
  • Kate Seear and Becky Batagol: The need for a new ethical rule for lawyers in family violence intervention order matters
  • Kathy Douglas, Christina Platz and Tina Popa: Teaching Advocacy and Mediation in a Blended Learning Design: Scaffolding Learning Through Video Annotation/Discussion
  • Jackie Weinberg: The common missions of ADR and clinical legal education provide a solid foundation for teaching ADR in clinic
  • Lola Akin Ojelabi: Legislation-based DR Processes and Access to Justice
  • Alex Crampton: Mandatory Family Court Mediation as Variably Empowering and Coercive: Ethnographic Exploration of a U.S. Family Court Mediation Program
  • Claire Holland and Tina Hoyer: A case for coaching: Influencing cultural change in the ATO
  • Cris Vianna Veras: Teaching mediation in Brazil and Australia: can we improve access to Justice?
  • Re-Accreditation of Mediators and further issues of regulation: Janet Barnes with Kathy Douglas and Alysoun Boyle from ADRAC
  • Mary Riley: Is there a place for restorative justice in civil mediation?
  • Danielle Hutchinson and Emma-May Litchfield: Mixed Modes (Hybrid) Processes Research
  • Pauline Roach: The importance of the Intake Interview in a workplace dispute
  • Joanne Burnett: Lessons from the Literature: Developing A Framework for Practice in A Social Work Study of Family Violence in Family Law Mediation
  • Alysoun Boyle: Sample Populations in Empirical Studies of Mediation: Ramifications for What We Know About Mediation, and About Who Uses It
  • John Woodward: Mediation in chains: The problem with the thinning vision of self-determination in court-connected facilitative mediation
  • Sabrina Korva and Drossos Stamboulakis: Online courts: A possibility for consumers in Australia?

Stay tuned to the blog as we post workshop papers in December and January. Follow the hashtag #ADRRN18 for frequent updates on Monday and Tuesday.

Expanding the Concept of the Shadow of the Law in Family Dispute Resolution

Shadow of law

The literature on informal dispute resolution and family law has long recognised the influence of the shadow of the law on legal option generation and negotiations outside the courtroom. The term ‘shadow of the law’ was first coined by Robert Mnookin and Lewis Kornhauser in an influential 1979 article in the Yale Law Journal. They used the term to refer to the impact of substantive law on informal negotiations and dispute resolution processes, with particular emphasis on family law matters.[1] Even in informal dispute resolution contexts, Mnookin and Kornhauser observed, the law still provides the implicit backdrop and framework for negotiations.

Later authors have added sophistication and depth to Mnookin and Kornhauser’s analysis.[2] None of this research, however, directly answers the question of how participants in family dispute resolution in the current digital age source their information about the legal context. A recent article by Rachael Field, Lisa Toohey, Helen Partridge, Lynn McAllister and myself sets out to explore this issue through an empirical study of participants in family dispute resolution.[3] The information gathered through this research helps us to better understand the sense in which family dispute resolution may be said to take place in the shadow of the law.

The data from our study exposes the current conception of the shadow of the law as incomplete and insufficient. In particular, our results show that individuals acquire legal information of varying levels of reliability and credibility by relying on a range of formal and informal sources. Online sources are particularly influential in shaping parties’ understanding of the law, while discussions with family and friends also play an important role. Professional legal advice, by contrast, plays a relatively minor role for many participants. A significant proportion of parties do not or cannot access professional legal advice, while those who do access such advice do not necessarily regard it as the more important factor in their perceptions.

Our article therefore argues for a broader understanding of the concept of the shadow of the law and a more realistic conception of how that shadow influences the decision-making of parties in family law disputes. Family dispute resolution, we suggest, does not take place in the shadow of the positive law (the law contained in statutes, case law and other formal legal sources), so much as the shadow of the folk law (the law as depicted in informal sources such as online materials and popular media). Furthermore, there is not just one shadow of the law, reflecting the current state of the positive legal materials; rather, there are multiple shadows, depending on the parties’ socio-economic backgrounds and where they are gaining their information.

Government agencies, mediation providers and others involved in providing post-separation advice and information need to be aware of the influence that the folk law exerts on parties’ expectations. For government agencies and other advisors, there is a need to provide straightforward, accessible and digestible information about post-separation options, recognising that this information is likely to be accessed alongside a multiplicity of other sources. Mediators, likewise, need to be mindful that parties to family dispute resolution may come to the process with divergent understandings of the legal framework for their dispute. Mediators may need to reflect upon their own understandings of the law and ask how closely they might match or differ from the folk law that influences the parties.

[1] Robert Mnookin and Lewis Kornhauser, ‘Bargaining in the Shadow of the Law: The Case of Divorce’ (1979) 88 Yale Law Journal 950.

[2] See, for example, Becky Batagol and Thea Brown, Bargaining in the Shadow of the Law: The Case of Family Mediation (Federation Press, 2011); Jeremy Feigenbaum, ‘Bargaining in the Shadow of the “Law”: The Case of Same-Sex Divorce’ (2015) 20 Harvard Negotiation Law Review 245; Herbert Jacob, ‘The Elusive Shadow of the Law’ (1992) 26 Law and Society Review 565.

[3] Jonathan Crowe, Rachael Field, Lisa Toohey, Helen Partridge and Lynn McAllister, ‘Bargaining in the Shadow of the Folk Law: Expanding the Concept of the Shadow of the Law in Family Dispute Resolution’ (2018) 40 Sydney Law Review 319.

Call for Papers, Advances in Comparative and Transnational ADR, Hong Kong March 2019

Lots to blog about this morning!

I saw this call for papers on our US sister blog, Indisputably, and thought it was too good not to share here too.

The Law Faculty at the University of Hong Kong will be hosting a research forum March 8-9, 2019 on Advances in Comparative & Transnational ADR: Research into Practice to which we  warmly invite submissions for consideration.

 

  • The focus of the forum is on exploring the challenges and opportunities of understanding and assessing developments in systems of dispute resolution in diverse social and political contexts through comparative research.  Papers may cover topics such as practical considerations in conducting comparative work in the field of transnational and cross-border dispute resolution, insights from recent multi-country studies, and consideration as to how research may inform policy reform in ADR institutions regionally and transnationally. We hope the forum will facilitate research collaboration that will also translate into positive policy applications and directions for future study.
  • For those wishing to submit a paper for consideration:
a) By 10 December 2018, please e-mail us:
(i) an abstract of your paper (up to 200 words);
(i) your biography (100 words);
(iii) indicate whether you intend to submit your paper for the conference publication; and
(iv) indicate whether you have any objections to being a discussant at the forum.
Submissions may be sent to: sali@hku.hk
More info here.

Harvard program on negotiation – graduate research fellowships

I saw this and thought some of our graduate research scholars who follow this blog might be interested. 

student harvard

Accepted Students Day 2018 by PresbyPhotos (CC BY-NC 2.0)

Harvard University’s Law School invites applications for graduate research fellowships under its programme on negotiation. This supports dissertation research and writing in negotiation and related topics in alternative dispute resolution and gives fellows an opportunity to immerse themselves in the diverse resources available at the programme on negotiation. The purpose is to give doctoral students who are writing their dissertations the opportunity to be part of the programme on negotiation community.

PhD students enrolled in programmes outside of the US may apply. Candidates in the fields of economics, psychology, sociology, anthropology, international relations, public policy, urban planning, business and law are encouraged to apply. Candidates must have completed all degree requirements except for their dissertation. Graduate law students are eligible in connection with scholarly research undertaken to satisfy their Doctor of Juridical Science thesis requirements.

The fellowship lasts for one year and includes a stipend of USD 26,000, communal work space, library access and other privileges at Harvard.

 

  • Closing date 08 Feb 19
  • Deadline information This call is repeated once a year.