We are delighted to announce our Call for Papers for the 9th Australasian Dispute Resolution Research Network Roundtable, to be held at the University of Newcastle 1st and 2nd February 2021. The conference will be held both face to face and on zoom.
This year, we will be holding the conference in conjunction with the Civil Justice Conference, with participants able to chose the format for their presentation.
Please share this call for papers with any researchers who may be interested. We welcome participants from all career stages, and from anywhere in the world.
Human dignity is central to solving human problems including disputing. It is also important in dispute resolution and management. While there are different conceptions of dignity, human dignity as the capacity of humans to reason and make free moral decisions is synonymous with individual autonomy or the capacity for self-determination. This conception of human dignity yielding to self-determination is critical in modern mediation/dispute resolution. Another conception of dignity is substantive dignity – ‘the enforcement of substantive values … living in a certain way’ particularly the aspect that promotes ‘access to social and economic goods, enabling one to maintain a certain minimum standard of living’. Arguably, the whole idea of promoting access to justice is based on this conception of human dignity. Access to justice is referred to as the right of individuals to access processes for the efficient and effective resolution of their disputes. In decision-making processes, valuing human dignity should lead to conclusions that accord human worth; giving recognition to individuals’ basic need for esteem and respect.
Human dignity and autonomy is about the capacity of humans to reason and make free moral decisions. As noted above, it is sometimes considered synonymous with individual autonomy, that is, ‘the ability of each person to determine for himself or herself a view of the good life’ in other words, freedom of choice and in dispute resolution in relation to process and outcome. It is the extent to which parties are free to choose the process, select the procedure to be followed and determine the outcome of the dispute resolution process. While not all dispute resolution processes give effect to this autonomy, those that do could be referred to as dignifying processes. These processes promote party decision-making and require parties to consider other parties’ interests while aiming at a win-win solution. These processes could be collaborative problem-solving or cooperative processes including negotiation and mediation in their pure forms. Principled negotiation, which also forms the basis of pure facilitative mediation has four elements: separating the people from the problem, focusing on interests and not positions, inventing multiple options prior to deciding, and applying objective criteria. These elements, when fully explored, support human dignity as autonomy.
Mediation, particularly facilitative mediation, promotes the self-determination of participants. Self-determination is the parties’ freedom to make decisions in their own best interest without interference from others, including other parties and dispute resolution practitioners (DRPs). Concerns about self-determination relate to the level of impartiality of DRPs, including whether they give advice to parties or pressure parties to reach a settlement. Other concerns include the extent to which a party may participate in the process, including whether they have a voice and the effectiveness of their voice in the process. The latter concern can be further explored though a consideration of factors that may limit the effectiveness of a party’s voice. These factors are multiple and include lack of familiarity with process, not understanding responsibility in the process, power imbalance including informational asymmetry, access to resources, lack of understanding of legal issues and lack of access to legal representation or other professional support and the involvement of repeat players. Full exercise of individual autonomy may be inhibited by these factors. Other factors include cultural bias, stereotypes, prejudices and incorrect assumptions about a party in relation to their cultural identity, including race and ethnicity.
In negotiation and mediation, parties are the ultimate decision-makers. By focusing on the problem and not the people, parties refrain from an attack on the person but focus on the problem. In addition, negotiators must recognise that they ‘are dealing not with abstract representatives … but with human beings [with] emotions, deeply held values, and different backgrounds and viewpoints’. The relationship between the parties in this process should exhume ‘trust, understanding, respect’ but of course, this is not always the case. As noted by Ury et al, people ‘are prone to cognitive biases, partisan perceptions, blind spots, and leaps of illogic’, they ‘get angry, depressed, fearful, hostile, frustrated, and offended. They have egos that are easily threatened’ and ‘see the world from their own personal vantage point’ without consideration for others. What Ury et al teach about separating the people from the problem is to avoid these human pitfalls through a focus on relationship, giving value to the other party, empathy, refraining from blaming, and face-saving among other things. This is the responsibility of parties in negotiation because they control both the process and the outcome of negotiation. Both parties have a ‘voice’ in the decision-making.
In mediation, ethical standards impose responsibilities on third parties to ensure effective participation in the process. Third parties must give opportunity [to parties] to speak and to be heard and to enable balanced negotiation between parties among other things. To accord dignity to every party in a DR process, the five core interests of any human being must be satisfied. The interests are autonomy, appreciation, affiliation, role and status. Paying attention to these interests ‘can build rapport and a positive climate for problem-solving’. The reason is not far-fetched: human dignity is a universal need.  Paying attention to a party’s voice is an important core need in dispute resolution and would go a long way to safeguard the dignity of parties.
 Neomi Rao, ‘Three Conceptions of Dignity in Constitutional Law’ (2011) 86 Notre Dame Law Review 183 at 187.
 Lucy Michael, ‘Defining Dignity and Its Place in Human Rights’, (2014) 20(1) The New Bioethics, 12 at 22.
 Access to Justice Taskforce, A strategic framework for access to justice in the federal civil justice system, Attorney-General’s Department, Australian Government, Canberra (Report 2009).
 Charles Taylor, ‘The Politics of Recognition’ in Amy Gutman (ed), Multiculturalism: Examining the Politics of Recognition, Part One, (Princeton University Press, 1994) 57.
 John Thibaut and Laurens Walker, Procedural Justice: A Psychological Analysis (Lawrence Erlbaum Associates, Publishers, 1975) 1-2.
 National Mediator Accreditation System (NMAS), Practice Standards, July 2015, cl 2.2. It defines mediation as a process “that promotes the self-determination of participants. and in which participants, with the support of a mediator: (a) communicate with each other, exchange information and seek understanding (b) identify, clarify and explore interests, issues and underlying needs (c) consider their alternatives (d) generate and evaluate options (e) negotiate with each other; and (f) reach and make their own decisions”.
 Lola Akin Ojelabi, ‘Exploring Voice as a Justice Factor in Mediation’, (2019) 38 Civil Justice Quarterly 459.
 National Mediator Accreditation System (NMAS), Practice Standards, July 2015, cl 7:4.
 National Mediator Accreditation System (NMAS), Practice Standards, July 2015, cl 7:5.
 National Mediator Accreditation System (NMAS), Practice Standards, July 2015, cl 7:4 , 7:7.
 William Ury, Roger Fisher and Bruce Patton, Getting to Yes: Negotiating an Agreement Without Giving In (Random House Business Books, 2012) 32.
 William Ury, Roger Fisher and Bruce Patton, Getting to Yes: Negotiating an Agreement Without Giving In (Random House Business Books, 2012) 32. Autonomy is referred to as ‘the desire to make your own choices and control your own fate’.
We are happy to report that the review of the National Mediator Standards is well underway. Reference Group participants have commenced lending their expertise towards the development of the Approval and Practice Standards Survey (The NMAS Survey).
The NMAS Review Team are currently seeking expressions of interest for February 2021 workshop waitlists and participants for The NMAS Survey pilot in April.
The NMAS Review 2020-21 is designed to be a collaborative process that actively seeks input from a diverse range of stakeholders across multiple points in time and using a variety of engagement strategies. This means stakeholders will have multiple opportunities to provide input over the life of the review.
The Approval and Practice Standards Survey (The NMAS Survey) is the primary instrument of the review and as such is the review proper. Unlike many traditional review processes, The NMAS Survey is being developed in consultation with the DR community through a range of forums including reference groups, collaborative workshops and pilots.
The findings arising out of The NMAS Survey will form the basis of the recommendations to the Mediator Standards Board (MSB).
Participation in The NMAS Survey is open to all stakeholders and interested parties. We invite you to be a reviewer by completing The NMAS Survey when it becomes available later in the year.
Well done everyone, you’ve nearly made it to the end of this extraordinary year. A big thank you to our monthly editors and all contributors for keeping up the ADRRN presence throughout a year of considerable challenges. Thank you to all our readers, who have maintained a sustained interest and visited this site over 25,000 times during 2020.
Here’s a summary of our posts since January 2020.
Dispute Resolution and Crisis
Olivia Rundle’s post in late January 2020 responded to the catastrophic bushfires and floods sweeping across the Australian continent. It overviewed some of the kinds of disputes likely to arise, and mechanisms available for responding to them. Resolving disputes following catastrophic events remained relevant as catastrophe rolled out over the globe for the remainder of the year.
In April, Professor Rachael Field organised daily posts titled Lockdown Dispute Resolution 101, designed to offer dispute resolution tips and strategies for effective communication, negotiation and the resolution of disputes while in lockdown. If you visit our April posts you will find 25 Lockdown Dispute Resolution 101 offerings. Also that month, Professor Laurence Boulle shared his reflections upon the disruption to dispute resolution habits of time and space in a post COVID19 world. John Woodward shared his observations about the successful adoption of collaborative negotiation strategies by some governments and parliaments, to respond to the COVID19 pandemic. John concluded that ‘those nations which have embarked on more focused and integrative methods of resolving the crisis have enjoyed greater success in meeting the challenge, reducing the uncontrolled spread of the disease and saving lives.’
In March the dates and location for the 2021 National Mediation Conference (NMC 2021) were announced, and it has subsequently been announced that the conference will be blended, to facilitate online attendance for those who do not travel. It is a great honour that the Desert Knowledge Precinct Partners (Centre for Appropriate Technology, Batchelor Institute of Indigenous Tertiary Education, Desert Knowledge Australia and the Desert Peoples Centre) have issued an invitation to the dispute resolution community to hold NMC 2021 at their facilities in Alice Springs. Laurence Boulle, Chair of the NMC acknowledged on behalf of the NMC Committee and dispute resolution community the Western Aranda and Central Arrernte peoples of the Alice Springs region, and all First Nations people upon whose land we live and work, and their connection to land, waters and culture.
Aboriginal and Torres Strait Islander Dispute Resolution Wisdom
Margaret Castles reported in July about her partnership with the Mobile Language Team at Adelaide University to provide focused Aboriginal cultural awareness training for law students, in both client interviewing, and in ADR theory and practice. Margaret’s report her heightened awareness of the influence that her Euro-centric upbringing, education and legal training has on teaching and mediation practice. Margaret’s post reminds us that indigenous scholarship, partnership and deliberate effort to de-colonise our thinking will enhance and improve dispute resolution research, practice and teaching.
What makes mediation challenging and interesting is that, at least at the low-value end of the justice system, it provides people with the opportunity to determine not only the outcomes to their disputes, but the criteria by which those outcomes are evaluated. It turns out those criteria amount to more than simple self-interest and include a strong urge to be seen as a fair person.
The diversity of personal characteristics of disputants was highlighted in Danielle Hutchinson and David Hutchinson’s post where they explored neurodiversity and how dispute resolution practitioners need to be informed in order to practise in an inclusive way. Inclusive practice and dispute resolution’s need to respond more appropriately to culture diversity was the focus of Zaynab Gul’s post.
Margaret Castles considered human motivations for retribution and punishment through her analysis of the series Game of Thrones. Her post was ‘prompted by the idea that the millions of modern day viewers rejoicing at the often brutal but seemingly fitting retribution that some truly reprehensible characters suffered in Game of Thrones, are the very same people that we see in facilitative ADR processes – in other words, us.’
Joshua Facchin is a final year student from the University of Tasmania, studying a combined degree of Bachelor of Economics/Bachelor of Laws (Hons). He elected to undertake his Honours research in the field of dispute resolution. Specifically, he focussed on the civil procedure rules regarding pre-action requirements (or protocols). The title of Joshua’s research project was, “Pre-Action Requirements: Are they really as inconvenient as they are made out to be?”. The paper explored the function of pre-action protocols within the Civil Dispute Resolution Act2011 (Cth) and how effective they are in resolving matters while upholding access to justice. It also analysed the rationales of the New South Wales and Victorian Governments in not legislating for similar pre-action protocols on a state level. In 2021 Joshua wishes to complete his Graduate Diploma of Legal Practice and be admitted as a legal practitioner.
Hello, I am studying a Bachelor of Laws at the University of Tasmania having just completed my penultimate year. I currently study part time and work full time as a cadet and the Department of Treasury and Finance Tasmania. Working full time in this position as I study law has provided me with great insight into traditional dispute resolution commonly used in the legal profession, as well as the importance and differences of dispute resolution in not only the public sector but in practice within the workforce in general. Over the next coming years, I look forward to exploring my options further in the public service, as well as taking up opportunities in the private sector where I hope to develop my skills across the dispute resolution board in hope to become an effective and successful advocate. Thank you for taking an interest in my post and please feel free to contact me if you wish.
It is no secret that deception as a tactic is commonly used by lawyers within negotiations. Is this because some lawyers can’t help but lie? Do they disregard ethical principles? Is winning such a priority for these lawyers that professional and personal ethics are mute in comparison? This is a commonly held stereotype of lawyers. Many lawyers even agree with these stereotypes, so much so that lawyers enter negotiations expecting falsehoods throughout the discussions.
In fact, a study in 2005 demonstrated that where negotiators were given incentives to lie, but the option to tell the truth, only two per cent of negotiators chose to tell the truth. The remainder of negotiators either chose to conceal information or actively lied.
Negotiators don’t just deceive for the sake of being deceitful. It’s proven that deceptive tactics are likely to achieve better outcomes. Deception doesn’t necessarily involve blatant lying either. For example, it could include strategically revealing facts, bluffing, avoiding questions or overstating one’s position (all tactics quite stock and standard in the legal profession).
Since all lawyers want the best outcome possible, lawyers who may be ethically against deception may be tempted to step outside of their boundaries to compete. Lawyers are then left in a battle against opposing lawyers where they themselves need to not only deceive their opposing party in order to get the best outcome, but be a better deceiver than their opposing party.
So is that it? Lawyers like to win, in fact, it is their job to get their client the best outcome. Does that mean lawyers are doomed to be deceptive until the end of time? Frankly, no.
Despite the above, it is my argument that lawyers have been let down by lack of clarity about how to balance these dilemmas and their ethical obligations. Negotiation as its own process lacks guidance on ethical conduct. In fact studies have suggested that many lawyers deceive because they are confused as to what constitutes unethical conduct within negotiations.
Yes, whilst it is true that Australia has professional conduct rules which umbrellas over negotiation, it is clear that this alone is ineffective in clarifying what is ethical within negotiations (because deception is still occurring, right?).
Deception may always be a tactic used within negotiations. However, the legal profession needs better ground rules and ethical guidelines regarding negotiation in Australia. Until then, lawyers will continue to be left to navigate the complex relationship of ethics and deception without consistent guidance.
Louis Benjamin has just finished his Bachelor of Arts and Law. He is interested in the role of the law in both reproducing and remedying inequality and social inequity. At the end of his penultimate year of study, he interned for a Tasmanian practitioner involved in a court-connected mediation. The client had a mild learning difficulty and severe psychological trauma. Observing this process triggered an interest in court connected mediation and vulnerable individuals. Louis became interested in the relationship between the roles of lawyers and mediators in achieving individual access to justice on one hand, and the role of case management and the Court’s objective of structural access to justice on the other hand. In this vlog post Louis summarises his research essay on the topic, in which he concludes that there is room within the structure to ensure that vulnerable individuals achieve better equity. Louis makes the case that it is incumbent on practitioners to extend their diligence and tailor their representation to the client’s vulnerability, and that there is scope for targeted professional development and training to that end.
Mehak Bagga is a final year business – law student at the University of Tasmania, graduating in December 2020. Mehak researched the emergence of artificial intelligence in alternative dispute resolution. Her interest in the area stems from her study of the benefits of emerging technology in the legal domain. She presents her research from an access to justice point of view and critiques the notion that artificial intelligence improves such access. Mehak is interested in a career in commercial litigation, including exploring opportunities in alternative dispute resolution.
Mehak can be contacted at LinkedIn or by email email@example.com
My name is Mollie and I am an Arts/Law Student majoring in sociology. I chose to participate in the Dispute Resolution unit because I was interested in learning more about ADR techniques and the pros and cons of an alternative to the court system. I chose to focus my blog on CALD families because I wanted to understand how a minority group within Australia experiences FDR and what can be done to improve access and experience.
People from culturally and linguistically diverse(‘CALD’) backgrounds are not accessing family dispute resolution(‘FDR’) services at a rate proportionate to their presence in Australia. The research suggests that CALD communities are concerned that FDR services would not be culturally appropriate or sensitive to their disputes. My paper explores the challenges and opportunities for Family Dispute Resolution Practitioners (‘FDRP’) in ensuring that FDR is culturally sensitive and appropriate.
Throughout my research I found that FDRP’s could benefit from a uniform approach to culturally sensitive FDR directed from the Government. I also found that FDRP’s could benefit from engaging in a reflexive practice. This would help them to continually challenge review and assess how they are providing FDR services to CALD families. 
Finally, I found that gender roles were a common reason why CALD communities felt that FDRP’s would not be culturally appropriate or sensitive. Rather for many CALD communities, respected older family members of community leaders are often approached first to help resolve family disputes. Even to the extent that they sometimes engage in helping divide up assets. I found that there was some anecdotal support for including these older respected family members or community leaders in the FDR process.
 Susan Armstrong, Enhancing access to family dispute resolution for families from culturally and linguistically diverse backgrounds (AFRC Briefing No.18 November 2010) 23;
 M. Dimopoulos, ‘Mediating difference: Utilising cross-cultural training skills to work more effectively with diverse groups’ in Toom Fisher (ed), Fourth national mediation conference proceedings (Melbourne: School of Law and Legal Studies, La Trobe University 1998); Australian Law Reform Commission, Family violence – A National Legal Response (ALRC Report No 14, November 2010).
 Susan Armstrong, ‘Developing Culturally Reflexive Practice in Family Dispute Resolution’ (2012) 22 Australasian Dispute Resolution Journal 30, 38-40.
 Lola Akin Ojelabi, Tom Fisher, Helen Cleak, Alikka Vernon and Nikola Balvin, ‘A cultural assessment of family dispute resolution: findings about access, retention and outcomes from the evaluation of a family relationship centre’ (2012) 18(1) Journal of Family Studies 76, 79.
 Ghena Krayem and Farrah Ahmed, Islamic Community Processes In Australia: An Introduction.
Sharifah Syed-Rohan is a final year Bachelor of Arts/Bachelor of Laws (Hons)/Bachelor of Philosophy student at the University of Tasmania. Having majored in Bahasa Indonesia as part of her Arts degree, Sharifah travelled to Indonesia numerous times as part of both her Arts and Law degrees and is passionate about fostering the cross-border relations between Australia and Indonesia. After completing a summer clerkship at KarimSyah Law Firm, Jakarta in 2020, Sharifah observed international commercial arbitration in Indonesia, and wondered whether this system could adopt aspects of the Australian system to ensure just outcomes for its users. In 2021 Sharifah will be moving to Canberra to commence work for the ACT Public Service and hopes to continue building her knowledge of the Indonesian language, culture and law.