The common missions of ADR and clinical legal education provide a solid foundation for teaching ADR in clinic

This paper is part of a series presented at the 2018 7th ADR Research Network
Roundtable hosted by University of the Sunshine Coast Law School. The 8th ADR Research Network Roundtable will be held in December 2019 in Melbourne, hosted by LaTrobe Law School.

by Jackie Weinberg , Monash Law School

Over recent years, ADR has become an integral part of Australian legal practice. This, along with a number of other forces, has led to a recognition that ADR needs to be taught in law schools. In my PhD research, I explore whether it follows that ADR should be taught in clinical legal education (CLE). In this paper, I report the findings from my PhD research addressing the question of the role of ADR in CLE. Drawing upon interviews with clinicians, I consider whether ADR ‘fits’ within CLE, and if so, on what basis.

jackie paper 2 2018

Jackie presenting her paper on 3 December 2018

My paper shows that clinicians saw CLE as striving to have a strong link to “social justice” and “legal service”. Similarly, they viewed ADR as having access to justice as its focus. Although the links were not always explicitly made by the participants, the implicit connection and “value” of ADR in CLE, in their minds, indicated that they both align with a common goal of furthering access to justice. Clinicians believed that a common mission exists between ADR and CLE in the form of the advancement of social justice. Community Legal Centres (CLCs), incorporating clinical programs, utilise ADR to accomplish their mission of social justice and this facilitates the implementation of clinical practice goals.

Some clinicians expressed caution that there are limitations in relation to ADR providing access to justice. However, in the course of exploring with the participants the issues and concerns of both CLE and ADR, it became apparent that clinicians still viewed ADR as integrally linked to social justice concerns and the advancement of access to justice. Clinicians viewed ADR as a valuable component of CLE, enhancing student awareness about social justice and the various options for dispute resolution. Bloch echoes these views, stating “clinical legal education has always had a broader goal-to teach law students about what lawyers do and to understand lawyers’ professional role in the legal system in the context of having students provide various forms of legal aid services.”[1] Bloch goes on to emphasise that because ADR and clinical education share overlapping goals of advancing the interests of parties and addressing deficiencies in access to justice, ADR education and CLE are “slowly integrating and advancing beyond the teaching and practice of basic negotiation skills that have been included in the clinical curriculum for years.”[2] Bloch opines, “clinical programs that teach and practice ADR can inform, improve, and reform not only legal education, but also-over time-the practice of law and the legal profession as well, thereby furthering the social justice goals of the global clinical movement.”[3]

From my findings and supported literature, I argue that the close association between the social justice “missions” of CLE and ADR, enhanced by their relationships with CLCs and legal aid programs, provides a solid foundation for the teaching of ADR in CLE.

weinberg

 

Jackie Weinberg is a law lecturer, PhD Candidate, and Clinical Supervisor in Monash Legal Practice Programs at the Faculty of Law, Monash University. Jackie’s research is focused on an exploration of ADR in clinical legal education. Jackie recently published an article in the IJCLE titled: Keeping Up With Change: No Alternative To Teaching ADR In Clinic. An Australian Perspective. In addition to ADR, Jackie has keen interest in student well-being and technology and the law, focusing on access to justice in clinical legal education.

 

[1] Frank S. Bloch, The Global Clinical Movement (Oxford University Press, 2011) 167

[2] Ibid.

[3] Ibid.

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Teaching Mediation In Brazil And Australia: Can We Improve Access To Justice?

This paper is part of a series presented at the 2018 7th ADR Research Network
Roundtable hosted by University of the Sunshine Coast Law School. The 8th ADR Research Network Roundtable will be held in December 2019 in Melbourne, hosted by LaTrobe Law School.

 

By Professor Cristiana Vianna Veras, Visiting Scholar at Flinders University 

 

The development of the mediation as an institution can be understood as global phenomenon, since several countries present different state and societal experiences of this form of conflict resolution. Although some countries have been working to institutionalize mediation for more than three decades, we can say that mediation is still a “young” experience and now seems to have spread everywhere. In Brazil, the institutionalization of mediation began in 2009 and was encouraged in the field of the Judiciary through a public policy to promote the application of consensual forms of conflict resolution that, through a discourse of social pacification and better adaptation of the form of treatment of social conflicts, sought to reduce the number of lawsuits, currently one of the biggest problems confronting the Brazilian judicial system.[1]

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Professor Cristiana Vianna Veras presenting her work at the 7th ADR Roundtable on 4 December 2018

Different actors participate in the applied field of mediation in Brazil. On the one hand, as a pioneer in this field, non-governmental organizations and private institutes, were first responsible for implementing the initial practical training of the first mediators, and have since multiplied in number. On the other hand, the State, or more specifically, the Judiciary has reserved to itself the task of conducting mediations. Alongside these two main actors, a third can now be added: Brazilian law schools, which also participate in mediation in different ways.

In Brazil, law schools are overseen by the federal government, through regulations determined by the Ministry of Education. All law courses must conform to a core curriculum specified by national directives, although each law school is free to interpret this normative guidance. Due to this national curriculum, all law courses cover a range of theoretical disciplines and many courses include in this curriculum a topic on alternative dispute resolution and/or mediation.

In addition to theoretical subjects, all Brazilian law courses are obliged to offer a Center of Legal Practice that can act from simulations (abstract cases) and / or from a real service aimed at low-income people, with some courses offering mediation simulations or offering this possibility of conflict resolution to the local community.

Hence, there are three distinct possible spaces for mediation in law courses in Brazil: a theoretical space, a space of simulation and a space for serving the low-income population. Creating new dialogue within and between these actors who participate in the movement toward institutionalizing mediation is one of the primary goals of my research.

One perspective that helps to better understand these dialogues is the phenomenon of access to justice captured by the metaphor of waves by Mauro Cappelletti and Bryant Garth.[2]  These scholars identified measures implemented by different countries to make legal services more efficient, to better protect collective rights and to make the highly bureaucratized Judiciary more informal.

Mediation is mainly connected with the third wave of Cappelletti, as it is included in the experiences of alternative dispute resolution (ADR), and the trilogy of arbitration, conciliation and mediation that together constitute the process of informal justice. However, mediation is not just an alternative way of conflict resolution. To understanding of its full scope and meaning we should add to the three waves of Cappelletti, a fourth wave identified by Kim Economides[3] in 1997, namely lawyers’ (and judges) access to justice. This fourth waves also raises the issue of what kind of justice it is that which we wish to give access to?
Since mediation is a way of resolving conflict by the “parties themselves” (but with the assistance of a mediator), it may define new criteria of justice – which do not necessarily correspond to the criteria of state/legal justice – in the light of the parties’ own understanding of what is fair and appropriate for them.

In this context, many questions arise: how does mediation – theoretical, simulated or practical – act in terms of the different access to justice waves? What impact does a course on theoretical mediation have on law students? How many law students will intend to use mediation in their professional practice? Is there a more appropriate form of teaching mediation in order to encourage students to work with mediation in their future professional practice? Does experience with the simulations and/or real cases brought by low in-come users encourage students to use mediation in their professional practice?

Also important, is the response of law students exposed to this new form of conflict resolution confined to Brazil? Or is it the case that, in other countries where mediation has been longer established, we find a different response? Do these countries still have a dominant adversarial legal culture? To try to answer these questions, I am conducting comparative and empirical research on law students from three universities: Flinders University, Fluminense Federal University (UFF/public) and Pontifical Catholic University (PUC/private). After comparing the process/methods of the teaching of mediation in Brazil and in Australia, and whether they motivate law students to work with mediation in their future professional practice, I will analyze the contribution of teaching mediation in law school to the process of improving access to justice.

cris 2

There was strong engagement with Chris’ work during her session, including from commentator Dr Lola Akin Ojelabi, LaTrobe Law

Professor Cristiana Vianna Veras is a Visiting Scholar at Flinders University – Adelaide/SA in 2018/2019. She is also a Professor at School of Law of Federal Fluminense University – Rio de Janeiro/Brasil. Cris can be contacted on veras04@hotmail.com and cristiana.viannaveras@flinders.edu.au

[1] To understand the process of implementing of mediation in the Brazilian Judiciary and the main objective behind the official state discourse, see two studies of cases: Kilpo, Klever Paulo Leal. Dilemas da mediação de conflitos no Tribunal de Justiça do Rio de Janeiro. Tese de doutorado apresentada à Universidade Gama Filho. Rio de Janeiro: 2014 and Veras, Cristiana. Um estranho na orquestra, um ruído na música: a apropriação da mediação pelo poder judiciário a partir de uma experiência no Cejusc do TJRJ. Tese apresentada à Universidade Federal Fluminense. Rio de Janeiro: 2015.

[2]  Cappelletti, Mauro e Garth, Bryant. Acesso à Justiça. Porto Alegre: Sérgio Fabris, 1988.

[3] Economides, Kim. “Lendo as ondas do “Movimento de Acesso à Justiça”: epistemologia versus metodologia?” in Dulce Chaves Pandolf e outros (orgs). Cidadania, justiça e violência. Rio de Janeiro: Editora Fundação Getúlio Vargas, 1999. English version: Economides, Kim “Reading the Waves of Access to Justice” Bracton Law Journal, Vol.31, 1999, pp.58-70.

Apologies: A New Reform?

By Sarah Tan

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

 

2018 marks the twentieth anniversary of National Sorry Day – a day that recognises the ‘grief, suffering and loss’ suffered by the Stolen Generations. With the recommendation from the Bringing them Home report, then prime minister Kevin Rudd apologised to the Aboriginal and Torres Strait Islander People for the acts of the Australian Parliaments.

Often, apologies are the hardest things to do. However, when a government agency has made a mistake, ‘sorry’ is exactly what citizens want to hear. This blog entry postulates the argument that a Victorian government agency should provide apologies to the public for mistakes it has made when dealing with complaints.

What is an (effective) apology?

Apologies can be documented in many forms – it can range from something along the lines of ‘I’m sorry for how you feel…’ to ‘It is a regret that…’. Nevertheless, an apology that is not genuine may backfire, resulting in the recipient feeling angrier. In cases involving bureaucratic organisations, misworded apologies may add to the conflict, confirming feelings that the organisation does not act in the public’s interest.

The New South Wales Ombudsman defines an apology as ‘an expression of feelings or wishes that can include sorrow, sympathy, remorse or regret as well as an acknowledgement of fault, a shortcoming or a failing’, and defines an effective apology as one that contains the following six Rs:

  • Recognition
  • Responsibility
  • Reasons
  • Regret
  • Redress
  • Release

 Why apologise?

With apologies being regarded by complainants as an essential prerequisite for the resolution of complaints, the benefits of apologising in the context of resolving complaints to governmental agencies are threefold – it is a mark of integrity, it promotes public interest, and it addresses key psychological impacts.

Firstly, an apology to members of the public demonstrates integrity. With governmental agencies depending on public confidence, it is of utmost importance that ethical governance and its themes of accountability, transparency and responsibility are maintained. Through the issue of apologies, a positive and transparent image of the agency will be restored. Instead of being regarded as an organisation’s weakness, an apology serves as a testament to the maturity of the government agency – one that is responsible and accountable for its weakness.

Although there is no guarantee that an apology may resolve every complaint, an apology at the minimum, will show how the agency acts with integrity. Furthermore, with the right motive in mind, an apology has the potential to restore trust and integrity. With trust being imperative for the functioning of organisations and human relationships, apologies are mechanisms of trust repairs that seek to restore positive attitudes and reduce negative feelings that occur from the conflict.

Secondly, an apology is beneficial when dealing with complaints as it helps to promote public interest and protects the complainant’s interest. This is also reflected in the use of apologies as a remedy in several aspects of Australian law. By publicising an apology, the public is educated on the wrongs of the government agency and recipients of apologies have a sense of public validation and personal vindication. Additionally, an apology serves the function of addressing any lingering impacts of the conduct on the complainants. As phrased by corporate respondents who were recipients of a publicised apology, an apology by an organisation sends a clear message to the community that a particular agency had erred.

In the media industry, the use of apologies as a way of responding to complaints is by no means unconventional. Under existing self-regulation mechanisms of the Australian Press Council, the use of remedies without adjudication has proved useful in the settlement of about three-quarters of its 700 complaints received each year. By resolving complaints in the form of apologies, corrections, or some form of remedial action, the prospects of a complaint resulting in litigation are minimised. Furthermore, with research indicating that complainants who receive an apology are more satisfied than those who receive no apology, it is undoubtedly that an apology is a tool of communication and emotion that has the ability to heal the emotional wounds associated with the wrong.

Lastly, an apology is beneficial as it has the potential to address key psychological impacts. More often than not, people make complaints as they feel humiliated, hurt, betrayed, and want to be given a full explanation of the incident. Through an apology, feelings of respect and dignity are cultivated and one’s reputation is restored. In addition, an apology has the ability to assure the recipient that he or she was not at fault. With evidence suggesting that apologies have a strong place of importance in the criminal justice perspective, it is evident that apologies may have the potential to achieve purposes beyond traditional remedies of compensation. That being said however, is not a proposition that apologies are to be seen as an alternative to punitive damages. Should apologies be construed as a form of compensation, misconceptions will arise in that apologies are to be regarded as an acknowledgement of a wrong.

On the contrary, an apology should be used as a tool in resolving complaints as part of a mechanism that incorporates notions of restorative justice. In the criminal justice system, the giving and acceptance of an apology are traits of restorative justice. Since an apology is a common term of settlement in conciliations and mediations, the use of such concepts when dealing with complaints will allow complainants to have a better understanding of why the mistake occurred. Being non-adversarial in nature, apologies are often described in miraculous terms with an effect of promoting restoration.

Drawbacks?

Nevertheless, despite the benefits and willingness of public authorities in Victoria to apologising, research has indicated an inconsistency of such a practice in the public sector. With more than half surveyed suggesting that they only apologise in certain scenarios and sixty-one per cent of authorities having no policies or guidelines to deal with apologies, the survey also revealed the main concern government agencies had with apologising – legal liability arising out of the apology.

Ever since the twentieth century, Australia has introduced apology laws in a bid to encourage apologies and reduce litigation without creating automatic liability. Nevertheless, there remains a strong belief that apologising in itself, is an admission of liability with adverse insurance applications. In Victoria, apology protection applies to civil proceedings where the conduct in issue deals with the death or injury of a person, or is in relation to a defamation claim.

Given the limited scope of protections, recommendations should be made such that protections for apologies are broadened. Acting on the recommendations of the Access to Justice Review, an apology should not be construed as an admission of liability and should not be admissible as ‘evidence of fault or liability’. At the bare minimum, legislators should draw on apology laws in New South Wales which provide protection for full apologies; in Victoria, protection is only awarded to ‘partial’ apologies. Under such a premise, legislators must first comprehend the real meaning of an apology.

Should apology laws in Australia remain inconsistent, the lack of uniformity may result in the minimum threshold being prescribed. Given the wide-ranging benefits of apologising, Victorian government agencies can only be an advocate of apology to members of the public for the mistakes they have made when dealing with complaints if reforms to apology laws are made. Nevertheless, until that happens, government agencies should bear in mind the High Court judgement which left open the possibility for the use of an apology as evidence in another way.

 

Sarah Tan is a third year Bachelor of Laws (Hons) student at Monash University who will be completing her studies in 2019. Having grown up in Singapore, she has a keen interest in international arbitration. She is currently a seasonal clerk at Cornwall Stodart and hopes to pursue her passion for alternative dispute resolution prospects in the commercial law context. Sarah has also been involved in pro bono work at the Monash Oakleigh Legal Services and Law Society of Singapore Pro Bono Services Office.

 

Bibliography

  • Articles/ Books/ Reports

Allan, Alfred and Carroll, Robyn, ‘Apologies in a Legal Setting: Insights from Research into Injured Parties’ Experiences of Apologies after an Adverse Event’ (2017) 42(1) Psychiatry, Psychology and Law 10

Allan, Alfred, McKillop, Dianne and Carroll, Robyn, ‘Parties’ perceptions of apologies in resolving Equal Opportunity complaints’ (2010) 17(4) Psychiatry, Psychology and Law 538

Carroll, Robyn, Beyond Compensation: Apology as a Private Law Remedy (Irwin Law Inc, 2010) 349

Department of Justice and Regulation, Submission to Attorney General, Access to Justice Review – Summary Report, August 2016

Friedman, Hershey H, ‘The Power of Remorse and Apology’ (2006) 7(1) Journal of College and Character 1

Goatly, Andrew, Washing the Brain Metaphor and Hidden Ideology (John Benjamins Publishing, 2007)

Jeter, Whitney K and Brannon, Laura A, ‘‘I’ll Make It Up to You:’ Examining the effect of apologies on forgiveness’ (2016) The Journal of Positive Psychology 1

King, Michael, Freiberg, Arie, Batagol, Becky and Hyams, Ross, Non-Adversarial Justice (Federation Press, 2014)

Lines, Wayne, ‘Civil Liability: New laws clear path for genuine apologies’ (2016) 38(8) Bulletin (Law Society of South Australia) 14

NSW Ombudsman, Parliament of New South Wales, Apologies – A practical guide (2009)

Ombudsman Western Australia, Parliament of Western Australia, Guidelines on Complaint Handling (2017)

Roschk, Holger and Kaiser, Susanne, ‘The nature of an apology: An experimental study on how to apologize after a service failure’ (2013) 24(3) Marketing Letters 293

Stubbs, Julie, ‘Beyond apology? Domestic violence and critical questions for restorative justice’ (2007) 7(2) Criminology & Criminal Justice 169

Victorian Ombudsman, Parliament of Victoria, Apologies Report (2017)

Vines, Prue, ‘Apologising for Personal Injury in Law: Failing to Take Account of Lessons from Psychology in Blameworthiness and Propensity to Sue’ (2015) 22(4) Psychiatry Psychology and Law 624

Vines, Prue, ‘Apologising to Avoid Liability: Cynical Civility or Practical Morality?’ (2005) 27(3) Sydney Law Review 483

Zwart-Hink, Andrea, Akkermans, Arno and Wees, Kiliaan Van, ‘Compelled Apologies as a Legal Remedy: Some Thoughts from a Civil Law Jurisdiction’ (2014) 38(1) University of Western Australia Law Review 100

 

  • Legislation

Defamation Act 2005 (Vic)

Wrongs Act 1958 (Vic)

 

  • Other

Australian Press Council, Remedies without adjudication (2011) <https://www.presscouncil.org.au/remedies-without-adjudication/&gt;

Duncan, Tom, ‘Ethical Governance: Accountability, Transparency and Responsibility in Parliaments’ (Paper presented at the 35th CPA Australia and Pacific Regional Conference Cook Islands, Rarotonga, 27 November – 1 December 2016)

Government of Western Australia, National Apology to the Stolen Generations (March 2018) Western Australian Museum <http://museum.wa.gov.au/explore/articles/national-apology-stolen-generations>

Marlow, Karina, ‘Explainer: the Stolen Generations’, SBS (online), 1 December 2016 <https://www.sbs.com.au/nitv/explainer/explainer-stolen-generations&gt;

Mills, Tammy, ‘Sorry is the hardest word: why our authorities don’t apologise for stuff-ups’, The Age (online), 2 May 2017 <https://www.theage.com.au/national/victoria/sorry-is-the-hardest-word-why-our-authorities-dont-apologise-for-stuffups-20170502-gvxdyn.html>

NHS Education for Scotland, The Power of Apology (2010) <https://www.nes.scot.nhs.uk/media/6338/Apology%20Spring%20Focus%202010.pdf&gt;

Riddington, Liana Kayley, Responding to a Trust Violation: The Relative Effectiveness of Apology, Denial, and Reticence (Thesis, University of Tasmania, 2015)

Vines, Prue, ‘The Apology in Civil Liability: Underused and Undervalued?’ (Working Paper No 33, University of New South Wales Faculty of Law Research Series, 2013)

 

 

 

Conflict is fun (?!)… holiday season ideas

The holiday season provides opportunities to spend time with loved ones, to break the ordinary routine, and have some fun. It can also be a stressful time for many people – family conflict can bubble to the surface. It is well known that family law services experience their busiest time over the December/January/February period. Tensions might arise around who will spend time with who and when, unresolved relationship rifts can be brought to a head, people who feel an obligation to attend events together might find themselves facing off, expectations can vary between couples or extended family relationships, disappointments might be voiced in the melting pot of spending intensive time together. The purpose of exchanging gifts as an expression of love can be undermined by the stressful process of shopping and unclear expectations about how much to spend, what someone would like, and navigating the hordes of other people engaged in the same mad pre-Christmas rush. Rebecca Huntley recently observed that:

“Interestingly I haven’t done much research on how Australians feel about Christmas, because it’s often fruitless to conduct focus groups past December 1. Everyone is too busy and cranky to turn up anywhere that isn’t offering free alcohol.”

Without empirical evidence, holiday conflict can be explained through the foundational assumptions of the conflict resolution field. In essence, conflict is an ordinary part of human interaction, and intense periods of interaction inevitably bring conflict.

So why bring all of this up, am I being a Grinch ?grinch-1939350_1920

Hopefully not. One of the best ways to equip ourselves to be better conflict managers is to expect conflict and respond to it mindfully. If our ordinary way of dealing with conflict with someone we love, or to whom we are tied by family, is to avoid or accommodate, then perhaps reimagining whether that approach is sustainable over intense periods of sharing time together can help us to plan to respond differently and constructively. Many of us find it much easier to implement our conflict management training when dealing with colleagues, clients, other professionals, service providers, or authorities than we do with people for whom we care deeply. It is much easier to moderate our behaviour when supporting others to deal with their conflict than it is when dealing with our own. Investing extra effort in managing our conflict interactions with the people we are closest to is challenging and absolutely worthwhile. We talk the talk of “conflict is inevitable, normal, and should be expected”, so let’s walk the walk and expect it. Let’s hold ourselves to high standards, be kind to ourselves and others, and expect not to resolve conflict perfectly all the time. It’s just part of the messy, ordinary, inevitable, beautiful chaos of human interaction and community. As people committed to a better way of managing conflict, we have to accept imperfection and commit to doing better next time.

Here are a few gift ideas too, which may help spread some cheery conflict management competence and enthusiasm (disclaimer – I have not actually used or bought any of these yet):

  1. For children Kinder to grade 6 there is a book called Trouble at the Watering Hole 
  2. Sharon Sutherland’s Gift Ideas to Inspire Conflict Resolution include collaborative games and board games for mediators.
  3. Monique McKay has put together (back in 2011) a suggested playlist to give to the mediator in your life.

Happy holidays to you from the Australasian Dispute Resolution Research Network.

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.

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).

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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).

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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