Seven Keys to Unlock Mediation’s Golden Age

As co-editor of the ADR Research Network Blog this month, I have invited Michael Leathes to talk about an international collaboration that he curated called The Seven Keys to Unlock Mediation’s Golden Age. Leathes’ original 2010 article, 2020 Vision – Where In The World Will Mediation Be In 10 Years, has inspired 40 dispute resolution thinkers — users, practitioners and scholars — to look a further 10 years into the possible development of mediation, not to predict the future, but to help invent it. I invited Michael to tell us more…

Seven car keys

An overview of the Seven Keys by Michael Leathes

As modern mediation enters its 5th full decade, it is timely to admit an inconvenient truth: global uptake of mediation appears to have plateaued far short of its potential. Is the mediation field around the world just going to do the same things over and over while hoping for a major uptick in growth? Einstein famously called this “insanity”.

Several great thinkers have memorably noted that the way to predict the future is to invent it. But this is a challenge in a deeply fragmented, highly competitive, often misunderstood field. The Seven Keys to Unlock Mediation’s Golden Age aims to mobilise an international conversation about how the field can trigger exponential growth over the next 10 years.

The introduction by Professor Nadja Alexander and Lela P. Love exhort stakeholders to imagine a new order illustrated by over 20 peer-reviewed propositions by 40 writers in 16 countries. Seven contributors are Australasians. Each piece is no longer than 1,111 words. The propositions are clustered into Seven Keys: Leadership, Data, Education, Profession, Technology, Government and Usage. They intersect to create what Professors Alexander and Love characterise as a whole greater than the sum of its parts.

Dr Rosemary Howell and Alan Limbury, with Ken Cloke and Joan Goldsmith, frame the work with a plea for the main players to come together and provide collaborative, mediative leadership with both a unified vision for the field and a clear mission and path to achieve it. A vision and mission that empower stakeholders to become the owners, and not merely renters, of the field’s future. The propositions that follow this call for mediative leadership all describe elements that can help shape the vision and implement it through the mission and include:

  • Generating credible science to support mediation skills and processes and to develop new theories from empirical and other field-sourced research data
  • Repeating the Global Pound Conference series periodically
  • Developing a “Negotiation Index” app packed with instant wisdom and evidence to aid mediators and parties
  • Widely teaching mediation as a core subject
  • Training mediators more thoroughly, not least in culture and neuroscience
  • Ensuring mediation is publicly respected as a true professional practice
  • Seeing mediators openly declare what they believe
  • Subscribing to a Code of Disclosure
  • Leveraging technology more effectively
  • Engendering visible Government engagement, including walking the talk and implementing the Singapore Mediation Convention
  • Proactively marketing mediation to users
  • Promoting mediation to facilitate deal making
  • Increasing peer mediation programs in schools
  • Promoting the value of women mediators
  • Making mediation a pre-requisite to litigation and more systemically encouraged and fused in arbitration
  • Helping inexperienced mediators gain a practice foothold with mentoring and practice programmes, and finally
  • If the main players collaborate to share leadership internationally and develop a single vision with a credible mission and a comprehensive budget, it should be fundable on a worldwide scale – it’s been done before!

Joanna Kalowski concludes with Many Paths, One Way. She calls upon the world’s leading stakeholders in mediation to chart the new future, adopt and build upon the Seven Keys as a springboard, and develop it collaboratively with energy and enthusiasm on a global scale.

Seven Keys to Unlock Mediation’s Golden Age was serialised on Mediate.com in June and July 2020.
The complete downloadable pdf of the Seven Keys is anticipated to be made available as part of the mediate.com 25th Anniversary in September 2020 as a no-charge e-book. Once published, the work may be reproduced in accordance with a Creative Commons licence provided within the document.
Interviews with many of the Seven Keys’ contributors have also been recorded and will be made available in conjunction with this publication.

 

Could COVID-19 see the end of Halsey?

The continuing development of ADR processes has brought with it a significant growth in litigation which explores issues such as  enforceability, good faith negotiation and cost sanctions for failing to mediate. These cases add to our understanding of how the field of ADR is continuing to develop.

With this in mind we have been fortunate to receive permission from Alan Limbury, Senior Fellow,  Melbourne Law School, to reproduce his recent Kluwer Blogpost. Please read Alan’s blogpost below.

Future-300x203

Written by Alan Limbury, Kluwer Arbitration Blog 22 June 2020

 

The impact of the COVID-19 pandemic on the administration of justice has led to commendable judicial innovation, such as the use of virtual hearings, while much of the workload has been postponed until the resumption of face to face hearings is declared safe.

In a message to judges in the UK Civil and Family Courts in March, the Lord Chief Justice said:

“It is clear that this pandemic will not be a phenomenon that continues only for a few weeks. At the best it will suppress the normal functioning of society for many months. For that reason we all need to recognise that we will be using technology to conduct business which even a month ago would have been unthinkable. Final hearings and hearings with contested evidence very shortly will inevitably be conducted using technology. Otherwise, there will be no hearings and access to justice will become a mirage. Even now we have to be thinking about the inevitable backlogs and delays that are building in the system and will build to an intolerable level if too much court business is simply adjourned. I would urge all before agreeing to adjourn any hearing to use available time to explore with the parties the possibility for compromise.”

Unless or until overturned by legislation or judicial decision, the situation in the UK is governed by the 2004 decision of the Court of Appeal in Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 (11 May 2004) , in which Dyson LJ (with whom Laws LJ and Ward LJ agreed) said:

“…it seems to us likely that compulsion of ADR would be regarded as an unacceptable constraint on the right of access to the court and, therefore, a violation of article 6 [of the European Convention on Human Rights].”

In 2010 the European Court of Justice differed, holding that a mandatory out-of-court settlement procedure is not contrary to European law so long as it does not result in a binding decision, does not cause a substantial delay in litigating, does not oust the court’s jurisdiction due to limitation periods and is not excessively costly: Rosalba Alassini and others v Telecom Italia SpA and others.

That was not the end of Halsey however, because Dyson LJ continued:

“Even if (contrary to our view) the court does have jurisdiction to order unwilling parties to refer their disputes to mediation, we find it difficult to conceive of circumstances in which it would be appropriate to exercise it. We would adopt what the editors of Volume 1 of the White Book (2003) say at para 1.4.11:

‘The hallmark of ADR procedures, and perhaps the key to their effectiveness in individual cases, is that they are processes voluntarily entered into by the parties in dispute with outcomes, if the parties so wish, which are non-binding. Consequently the court cannot direct that such methods be used but may merely encourage and facilitate.’”

Comment: that unfortunately erroneous passage from the White Book fails to address the substance of Harvard Professor Frank E A Sander’s well-known and compelling statement: “There is a difference between coercion into mediation and coercion in mediation.”

Dyson LJ went on:

“If the court were to compel parties to enter into a mediation to which they objected, that would achieve nothing except to add to the costs to be borne by the parties, possibly postpone the time when the court determines the dispute and damage the perceived effectiveness of the ADR process. If a judge takes the view that the case is suitable for ADR, then he or she is not, of course, obliged to take at face value the expressed opposition of the parties. In such a case, the judge should explore the reasons for any resistance to ADR. But if the parties (or at least one of them) remain intransigently opposed to ADR, then it would be wrong for the court to compel them to embrace it… we reiterate that the court’s role is to encourage, not to compel.”

Halsey established a regime whereby the courts may impose cost sanctions against successful litigants on the grounds that they unreasonably refused to engage in ADR. Such penalties are, of course, necessarily imposed after the decision on the merits of the case, whereas a power to order parties into mediation would be exercised before the final decision.

Even before the 2010 Alassini decision, Sir Anthony Clarke, in The Future of Civil Mediations, (2008) 74 Arbitration 4, 419 said:

“It is of course a cliché that you can take a horse to water but whether it drinks is another thing entirely. That it is a cliché does not render it the less true. But what can perhaps be said is that a horse (even a very obstinate horse) is more likely to drink if taken to water. We should be doing more to encourage (and perhaps direct) the horse to go to the trough. The more horses approach the trough the more will drink from it. Litigants being like horses we should give them every assistance to settle their disputes in this way. We do them, and the justice system, a disservice if we do not.”

Using the same cliché, in Wright v Michael Wright Supplies Ltd & Anor [2013] EWCA Civ 234 (27 March 2013) , Sir Alan Ward said:

“You may be able to drag the horse (a mule offers a better metaphor) to water, but you cannot force the wretched animal to drink if it stubbornly resists. I suppose you can make it run around the litigation course so vigorously that in a muck sweat it will find the mediation trough more friendly and desirable. But none of that provides the real answer. Perhaps, therefore, it is time to review the rule in Halsey…”

A year later, in Bradley & Anor v Heslin & Anor [2014] EWHC 3267 (Ch) (09 October 2014) , Norris J said:

“…The Court cannot oblige truly unwilling parties to submit their disputes to mediation: but I do not see why, in the notorious case of boundary and neighbour disputes, directing the parties to take (over a short defined period) all reasonable steps to resolve the dispute by mediation before preparing for a trial should be regarded as an unacceptable obstruction on the right of access to justice.”

In its 2017  Interim Report on ADR and Civil Justice , the Civil Justice Council ADR Working Group said at 9.32:

“… if the Working Group were free to choose we would be minded to allow judges to make orders in particular cases compelling an unwilling party or unwilling parties to attend a mediation or engage in some form of ADR.”

In its 2018  Final Report, the Working Group refrained from suggesting such a course, instead advocating increased encouragement into ADR at various stages and, at 9.24, proposing a system, as in British Columbia, in which a formal Notice to Mediate from one party to another triggers mediation by a mediator on a court-approved panel. The court is not involved unless the parties cannot agree on the mediator or otherwise seek its intervention.

While such a scheme would undoubtedly be useful, both in disposing of cases and in increasing awareness of ADR, the missing element is what I see as the clearly desirable power of the court, as it considers appropriate, to order parties into mediation whether or not they consent. In my 2018 Kluwer blog, I touched upon the way in which Australian courts use their statutory power to make such orders.

In his recent article Mediation – Don’t panic in the Pandemic – be prepared , Colin Manning, mediator, says:

“If, as seems likely, there is a risk that the courts will become overwhelmed by a wave of commercial cases, a combination of the number of adjourned cases built up during the lockdown together with a rush of new litigation arising from the pandemic, then there will be lengthy delays to hearings and trials. It must be possible that the judges will have to take practical steps to ease the pressure. One obvious step is to require all parties to engage, or re-engage in some form of ADR, almost certainly mediation, as a condition of bringing or continuing litigation.”

Perhaps the pressure caused by the COVID-19 pandemic makes this time for the UK to dump Halsey and adopt this approach.

 

Restoration Retribution Revenge and Forgiveness: what can Game of Thrones tell us about human needs in dispute resolution.

 

Along with millions of other viewers worldwide, I watched, reflected on, discussed, and evaluated Game of Thrones on multiple levels, to the point of being slightly embarrassed by the amount of mental energy I was spending on this exercise. The answer? Explore the theoretical bases for aspects of the series that intrigued me as a lawyer and dispute resolution practitioner.

Like millions of other viewers, I felt a deep sense of moral satisfaction (sometimes expressed via air punching jubilation) when numerous villains ‘got what they deserved’. This led me to think further about the concept of ‘just deserts’ and what ‘seeing justice done’ means to humans. ADR theory focuses on collaboration, understanding, and moving forward, but do positive reactions to violent demise in this series hint at a more visceral drive to seek revenge as well? Further reflection suggested that there were interesting nuances in the way that retribution and punishment were meted out in Game of Thrones – that the manner in which various transgressors got their just deserts might be intrinsically linked to both the severity of the transgression, and their moral character. (Yes, I did spend a lot of time thinking about this series).

SPOILER ALERT – if you have missed this series and don’t want to know what happens to some of the bad guys, go straight to *

Who didn’t feel secretly jubilant when the vicious, cruel, entitled and arrogant Ramsay Bolton was left to be torn to pieces by the very hunting dogs he’d trained to cause so much cruelty to others?

Was it only me who thought that whilst Stannis Baratheon clearly had to die, he deserved a death less gruesome, as a once decent man who had lost his way, but somehow still earned a little empathy for his misguided attempts to do the right thing?

And finally, Jaime Lannister, who veered from loathsome to likeable across 8 seasons, but finally met an end that seems somehow fitting with the emergent decency that he exhibited even though he could not ultimately reconcile the moral challenges that he faced.

Anyone who has seen the series will know that this analysis could go on and on.

* End of spoilers

It seemed inevitable that all of these people (and many more) really did have to die, but I wondered how the manner of their deaths might reflect some human need for revenge and retribution in the context of broader ideas of dispute resolution.

550 years BCE, Nebuchadnezzar talked about ‘an eye for an eye’. The related concepts of retribution and revenge have become cultural historical and philosophical pillars of Western criminal punishment principles. This works as a social balance – visibly illustrating the moral standards society expects, punishing the offender as a means of deterrence, and ideally providing satisfaction in the sense of re balancing the moral wrong, to the victim.  But is there also a need for the response to deliver some emotional benefit to the sufferer?

The idea of restoration – supplanting revenge punishment and the infliction of pain and consequence on transgressors, is a more recent phenomenon in criminal justice models, and contributes to modern Western criminal punishment theory. Ideas of restoration are also deeply embedded in ADR theory, particularly in facilitative relational processes, where past wrongs are examined, and left behind as the parties move forward.

The last 20 years or so have seen a number of research papers examine the  psychological balancing of revenge, and the necessity of forgiveness by those wronged in moving from retribution to restoration. Much of this work is framed in terms of punishing criminal offending, but underlying human reactions addressed in this process are equally present in non-criminal matters.

Peter Strelan and Jan-Willem Van Prooijen [1] describe forgiveness as the replacement of negative responses with positive ones towards a transgressor. The socio-cognitive steps in this process involve the transgressor doing something to encourage forgiveness, with the victim re-evaluating their response and perhaps developing empathy for the transgressor. But the authors also found that victims who can punish the transgressor are more likely to forgive. This act of causing harm or consequence appears to be important in moving from negative to positive responses to the transgression. Based on a series of controlled empirical studies, the authors propose that “ [T]ransgressions stir emotions of anger, resentment and condemnation and so prime a fundamental human need for balance and equity: That is, transgressors should not be allowed to get away with what they did” and that “seeing offenders suffer for their actions helps victims feel better”. They also point to physiological evidence that “retaliation is an instinctual response to being transgressed against”. Rather than contrasting a “punishment” or “forgiveness” dichotomy, the authors suggest that punishment is a necessary step on the path to forgiveness .

Tyler Okimoto, Michael Wenzel and N J Feather [2] explore concepts of justice orientation to explain the revenge v forgiveness phenomenon. They suggest that people are either oriented towards retribution, or towards restoration, aligning retributive orientation with people who value unilateral authoritarian imposition of penalty, and restorative orientation with people who prefer to achieve consensus about shared values. They align personality types with these two orientations, suggesting that power plays a significant role. Retributive preferences tend to align with individual even narcissistic personality types with strong adherence to authority and group-based dominance, as well as high individual value of power and self enhancement. Whereas restorative orientation tends to align with a conceptualization of justice as a process to achieve consensus between affected parties.  A very simplistic description of these preferences might contrast competitive individual values with collaborative communal values.

Monica Gerber and Jonathan Jackson [3] define the terms a little differently, describing retribution as both just deserts or revenge. As just desserts, the transgressor pays back for the harm done and justice is achieved by the redistribution of positive and negative experience. As revenge, the victim seeks not only to restore the balance, but to retaliate against the transgressor – “vengeance involves the emotional pleasure of seeing the offender suffer”.

SPOILER ALERT – skip next paragraph

Applying GoT examples to these theories, we might align Sansa Stark’s secret satisfied smile following Ramsay Bolton’s death with the idea of vengeance linked to offender suffering, and Brienne of Tarth’s regretful execution of Stannis Baratheon as a restoration of moral and social balance following his murder of his own brother in pursuit of the Iron Throne.

Gerber and Jackson’s suggestion that emotional pleasure might connect to visible suffering of transgressors is a bold and, in some ways, quite shocking conclusion – surely modern humanity has moved beyond that base need?

ADR, particularly mediation, seeks to move away from the concept of vengeance and retribution on the offender, to a restorative model that seeks to reintroduce balance by empathy, collaboration, and consensus. Yet it seems based on this research that underneath the choreography of mediation, and the implicit presumption that parties behave decently towards each other, there might lurk a much darker and more visceral need to see the other side suffer ‘what they deserve’ in retaliation for their moral transgression.  After all, there must be some reason why the term “the sweet taste of revenge” is still  in use today.

This train of thought 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. If this thread of desire for vengeance retribution and the infliction of suffering is hidden somewhere in the psyche of some if not all of participants in this process, what should we do with that? Is the elephant in the room here that people might be a lot meaner, vindictive, and retaliatory than anyone cares to admit – and that this is not some moral or character flaw but exists at a deeper psychological needs level.

I have never conducted a mediation where the parties, however opposed to each other, came anywhere close to exhibiting the sort of values and behavior that we saw on Game of Thrones. Nor can I imagine comfortably prompting discussion in mediation around a party’s vengeful desire that the other party suffer miserably in consequence of their past actions. But pursuing this line of inquiry has made me realise that the idea of basic psychological human needs may be more complex than I thought.

For a lively and wide ranging review of some of the ideas in this discussion, see Arne Sjostrom 2012 “When does revenge taste sweet: a short tale of revenge.” The Inquisitive Mind, Vol 15.

References

[1]        P Strelan & J-W van Prooijen 2013 “Retribution and forgiveness: The healing effect of punishing for just deserts”, 43 European Journal of Social Psychology, Vol.43, pp. 544-553.

[2]       T Okimoto, M Wenzel & N Feather 2016  “Retribution and restoration as general orientations towards justice” European Journal of Personality, Vol 26, pp. 255-275

[3[       M Gerber & J Jackson 2013 “Retribution as revenge and retribution as just deserts” Social Justice Research, Vol 26, pp.61-80

 

Best Practice for ADR in Equal Opportunity complaints

Peta Spyrou is a Doctoral student at the University of Adelaide Law School. She won a scholarship representing a partnership between the University and the Equal Opportunity Commission of SA. This scholarship supports students who have and interest in equal opportunity and human rights to develop interdisciplinary higher degree research skills.

 

Peta’s topic looks at disability discrimination complaints in the area of education from students who have a disability that manifests in complex behavioural issues. By focusing on the different ADR complaint-handling processes and tests for direct discrimination in SA and Victoria, Peta’s research aims to determine whether different outcomes and levels of satisfaction result under different systems. It also includes data from SA students who have made complaints to the Australian Human Rights Commission. Here  Peta explains the background and focus of her research.

 

  • What motivated you to devise this topic?

My interest in this topic is multi-dimensional: My personal connection to the disability community; intellectual interest in law; interest in this unique scholarship opportunity; and recognition of the benefits of an education, (developed by my upbringing from a family full of educators), all influenced this topic.

 

In mid 2017, a colleague, who happened to be an Alumni from the University of Adelaide, received an email from the University’s Graduate Centre advertising the scholarship and partnership with the Equal Opportunity Commission. Knowing of my personal interest in both disability advocacy and Law, my colleague forwarded this email to me and encouraged me to apply.

 

My interest in disability was sparked from my part-time caring role of a young person with disabilities. My connection to him and his family for now almost nine years fostered a keen passion in the areas of human rights and equal opportunity for people with a disability. This focus and passion are complimented by my intellectual interest in law, and belief in the value of evidenced-based research informing policy recommendations.

 

  • How does this partnership between the Law School and EOC work – what do you do and where?

Scholarship recipients can undertake either a PhD or Masters qualification under a collaborative arrangement with Dr Niki Vincent, Commissioner for Equal Opportunity SA, who supervises successful recipients alongside University of Adelaide academic staff.[1]

 

As part of my application process, I consulted with Dr Vincent directly. When formulating my topic, the Commission was receiving an increasing number of complaints from students with challenging behavioural issues as a result of their disability, who were alleging disability discrimination in education.

 

Initially, I wanted to examine what was best practice for resolving these complex disputes; however, I soon realised that a significant literature gap exists. The confidential nature of the ADR processes associated with Anti-Discrimination and Equal Opportunity Commissions mean that we do not know how these statutory bodies are resolving these complaints, if at all.

 

My partnership with the SA EOC has enabled other statutory bodies to partner with us to facilitate a comparative analysis. My research currently involves the Commissions in SA, Victoria and the Commonwealth, and I conduct my research from the South Australian Commission one day a week.

 

  • What, broadly speaking, is your thesis?

Students who have a disability that results in challenging behaviours, such as violent or threatening conduct, may affect the safety and wellbeing of themselves and others.

 

Educating these students presents teachers with unique challenges given the existence of competing duties: for example, the duty not to discriminate versus duty of care obligations.

 

Despite all Australian jurisdictions containing protections for students with a disability to access education free from direct or indirect discrimination, no legislative framework expressly addresses what the appropriate balance is between competing duties, interests or principles contained within anti-discrimination; work, health and safety; human rights and educational frameworks. Additionally, because all statutory bodies seek to resolve discrimination disputes through ADR, the confidential nature of both the process and any resulting agreements compound this ambiguity. As a result, a knowledge gap exists regarding how these statutory bodies resolve these disputes.

 

My research focuses on this gap and builds on existing ADR and discrimination literature by empirically examining disability discrimination complaints in relation to the protected area of education. It reviews settlement attempts under the different ADR processes in three Australian jurisdictions: SA, Victoria and, SA students who have made complaints to the Australian Human Rights Commission. This data will then be compared with publicly available judicial decisions.

 

The focus is on disability complaints raised by primary or secondary students who have challenging behaviours.

 

  • Could you outline the different EO structures that exist in Australia, including the use of ADR?

The dominant enforcement method under Australia’s anti-discrimination law is ‘compulsory conciliation’ at a statutory body. By this I mean that the overwhelming majority of frameworks require complainants lodge a complaint in writing to a statutory body for alleged breaches to the relevant Act. These bodies are tasked with the responsibility of upholding the objects of the legislation and attempt to settle disputes through ‘conciliation’, which is generally not defined in the Acts. If complaints cannot be resolved in this way, there is a potential for certain disputes to progress to a tribunal hearing, or federal courts if initiated with the Australian Human Rights Commission.

 

Victoria, however, has a slightly different system: It allows complaints to be lodged with either the Victorian Civil and Administrative Tribunal or with the Victorian Equal Opportunity and Human Rights Commission. Therefore, complaint lodgement at the Victorian statutory body is not a precondition to tribunal access. Even if a complaint is lodged with the Victorian Commission, the Act expressly allows for a range of different ADR processes to be used in an attempt to resolve the dispute.

 

My research investigates the intersection of the competing interests posed by students with challenging behaviours because of a disability. It seeks to determine whether the different complaint-handling processes in SA and Victoria results in any practical differences. It also compares results obtained through commissions and tribunals with outcomes of publicly available judgements. The purpose of this analysis is to examine whether the advantages of dispute resolution processes are being realised; whether one system receives higher satisfaction levels; and whether justice is achieved through non-litigious processes.

 

  • Can you explain the research plan that you are developing?

This research aims to address the literature gaps by both quantitative and qualitative means.

In working alongside the confidentiality constraints, the quantitative phase asks statutory bodies to provide data about educational complaints broadly, as well as specific data about complaints relating to students with complex behavioural issues. This initial phase is facilitated by the statutory body responding to a questionnaire which I modelled on the 1995 study conducted by Hunter and Leonard on sex discrimination outcomes (Rosemary Hunter and Alice M Leonard, The Outcomes of DIscrimination Cases (University of Melbourne, Faculty of Law, Centre for Employment and Labour Relations Law, 1995),  and after reviewing a relevant complaint (with the parent’s permission) that was lodged with the SA Commission.

 

The study’s qualitative phase aims to gauge user satisfaction on both the dispute resolution process and the outcome of the matter. This will be facilitated by semi-structured interviews with interested parties and professionals who have been involved in matters that fall within the project’s sample size. I will also use a scoping survey to determine the professionals I would like to interview. This is to ensure that the stakeholder has been involved in a matter that is relevant to my research. This second phase will also ask Commission staff to explain their complaints-handling model in relation to these disputes. It is hoped that this query will determine the scope of any issues associated with a lack of a statutory definition for conciliation, if at all.

 

  • Why do you think it is important to interview individuals as part of this exploration?

Literature suggests that people in dispute resolution settings, especially mandatory processes, often experience power imbalances leading to potential disadvantages or levels of vulnerability. Additionally, the personal circumstances of caring for a young person with disabilities may make parent advocates vulnerable negotiators in ADR settings.

 

My research examines this by giving a voice to users of relevant dispute resolution processes who are often not heard in policy development. In doing so, I will be uniquely placed to make conclusions with regard to what system best minimises the potential disadvantages of dispute resolution in complex disability discrimination disputes in education.

 

  • There is a lot of discussion about the definition and parameters of conciliation at the moment, what are your preliminary thoughts on that? What issues does that raise in your mind in relation to your research.

The absence of a universally accepted definition of conciliation may be a reason why much of the academic literature is focused on mediation, resulting in conciliation and mediation wrongly being used interchangeably. On one hand, this could mean that policymakers have created unplanned complaint-handling processes. In other words, legislatures could have created conciliation-based systems when they really meant mediation-based processes. On the other hand, the lack of a definition could provide the statutory body with broad discretion to resolve the dispute.

 

My research is in part looking at where the various complaint-handling processes lie along the ADR continuum. This may help commentators frame the discussion about the definition and parameters of conciliation.

 

  • What are you finding enjoyable about this experience? What are you learning and how do you think this will make a difference?

While I developed an interest in legal research in my undergraduate degree and through employment opportunities, being able to align my various interests and passions in a PhD topic that has the potential to assist an industry partner is an exciting aspect of my study.

 

1    Peta’s supervisors from Adelaide Law School are: Associate Professor Dr Bernadette Richards; Associate Professor Anne Hewitt and Senior Lecturer Margaret Castles.

[1]

Learning from Aboriginal Knowledge Systems in ADR

I teach Clinical Legal Education, Civil Procedure, and Alternative Dispute Resolution at Adelaide Law School. Aboriginal communication preferences provide a ready contrast to the orthodox client interviewing practices that are used in the Australian legal system. This year I partnered 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. Exploring the idea of knowledge systems made me appreciate the influence that my  Euro-centric upbringing, education and legal training has on teaching and mediation practice.  This discussion is the start of more detailed work with the Mobile Language Team that seeks to make law students and lawyers aware of their own and others’ cultural preferences .

In this discussion I often use the term “Aboriginal” as it is preferred in my state of SA. I mean no disrespect to others who prefer the terms Indigenous or First Nations.

Aboriginal and European knowledge systems

Indigenous knowledge describes the accumulation of knowledge and philosophy by societies over millennia. The term applies to pre-industrial societies and is typified by communities that have a predominantly oral tradition, exist synergistically with land and environment, and often live in communal or extended family groups. Guidance for life is often in the form of complex rules about relationships, land use, and behavior, and these rules are illustrated through place, landscape, stories, and spirituality. Indigenous knowledge systems often see the world as a cyclical phenomenon, with environment, people, experiences, stories laws and knowledge existing on a holistic plane,  rather than as a linear movement from ‘then’ to ‘now’.   Context, circumstance, and the perspective of the actor/s, means that knowledge is perpetually adaptive within broad frameworks. In contrast, Western European knowledge structures typically take a linear approach, with the past often representing “primitiveness” and the present seen as the apex of achievement. Proof – whether of historical fact, scientific hypothesis, or psychological condition, is critical, and rests on the written and evidentiary record. Colonial expansion of Europeans over the past 400 years has resulted in the hierarchical individualistic commercial and scientific values that underpin much Western culture being indelibly stamped on colonized nations and ways of life.

After centuries of being ignored,  recent decades have seen gradual national and international recognition that Indigenous knowledge is rich, relevant and comprehensive, with enormous value to modern day science and land management (Pascoe 2018, 12-13; Nakata 2007, p.9).

Anglo-Australian legal culture

Aboriginal and Anglo-European world views differ as much in law and dispute resolution as in other areas. Anglo European law rests on the foundational presumption that individual rights always exist in tension with the interests of the state and the community. The right of the individual to self-determination in their own personal, commercial, economic, religious, lifestyle and other interests must be actively asserted.  This reflects the cultural value attributed to commercial success and individual achievement, described by Lander as a ‘predatory’ culture that infuses both legal and governmental systems (Lander 2002, p.245).

Aboriginal cultural values are differently framed.  Whilst individuals are valued there are expectations of humility, collectivism, knowledge sharing, responsibility to nature and the environment, and the interconnectedness of all aspects of life and environment . A simple comparison might liken Anglo-centrist legal philosophy to the primacy of the individual and Aboriginal legal philosophy to the primacy of the community in sync with the environment.  Behrendt identifies key differences describing  Anglo-Australian culture as individual, hierarchical, and competitive; and Aboriginal culture as communal, egalitarian, and cooperative (Behrendt 2008, p. 93).

In the traditional Anglo-Australian context, laws are rigid and inflexible. Rights are determined by adversarial process in which parties present evidence of facts to a single  decision maker. This decision maker evaluates the evidence to decide if alleged facts are proven, and then determines how the law will apply to the proven facts. The existence of proven facts, and the application of the law, are the only relevant considerations. Loosely described as a ‘win lose’ competition, there is seldom a middle ground, and no scope for context, emotion, third party interests, or diverse non legal outcomes.

Larissa Behrendt provides a summary of the most visible differences between legal cultures:

Traditional Aboriginal dispute resolution Contemporary Anglo Australian litigation
Oral complaint

Emotional informal response

Disputants may live together

Jury of elders

Experience age and wisdom required in an arbitrator

No rules of evidence

Procedure evolves with dispute

Process occurs with family or clan present

Disputants and family address arbitrators

Time not an issue

Informal “circle” culture

Settlement discussed with disputants

Informal communal appeal

Written complaint

Controlled formal response

Disputants often strangers

Occasionally jury of peers

Formal legal training, experience, and reputation required for appointment as arbitrator

Fixed rules of evidence

Precise procedure

Process occurs with strangers, or no observers, present

Legal representatives address arbitrator

Deadline intensive

Formal court culture

Judgment delivered

Formal appeal process

 

(Behrendt 2008, p. 93)

Mediation is an important alternative to Anglo Australian court process. Looking at Behrendt’s table (above) it is very clear that mediation comes between the two sides of the table, and aligns with Aboriginal approaches.  Even so, mediation may continue to unwittingly apply Euro centric norms. In the following discussion I examine four of these perceptions: timing, mediator selection, communication preferences, and participants.

Time

Court process in Australia is tightly controlled. Even mediation, the least court-like approach, follows an orthodox series of  steps, and often occurs in a single meeting that might last a few hours, or a few days. Time and efficiency in Western society, including the legal system, is seen as a critical element of justice delivery.

Traditional Aboriginal dispute resolution processes are not linked to time frames. The process is entirely flexible, and may be decided by the parties, not the mediator. Experienced Aboriginal mediators trained in orthodox mediation, but attuned to the circular approach to time that informs Aboriginal culture, suggest that the choice and sequence of process should be given to the participants, not the mediator. They also suggest more flexibility in the phases of mediation, rather than an expectation that it will all occur in a discreet time frame (Kelly 2008 p. 224). This flexibility in process may be more useful to parties who need time and space to consider new ideas and rethink their issues and options.

Mediator choice

The use of independent neutral third parties to mediate or adjudicate disputes is a cornerstone of Anglo European dispute resolution philosophy. In Aboriginal culture this is not so often the case. The cultural respect accorded to elders in communities means that they are presumed to be suited to working with the parties to resolve the matter, even if they are closely connected to the parties and familiar with the context (Grose 1995 p. 334). This practice is noted in other pre industrialized societies around the world where social hierarchy is an important element in dispute resolution (Merry 1982, pp. 30-31). Aboriginal practice recognizes that deep cultural respect for elders will influence compliance with outcomes and result in community satisfaction. It also means that the dispute is controlled within community (Ciftci and Howard-Wagner 2012 p. 84).

Communication

There are cultural differences in communication style and preference (Ciftci & Howard-Wagner, p. 82). Direct linear questioning designed to elicit facts and timelines typifies Anglo-Australian legal practice, and court process (Eades 2012, p. 481). Whilst much less formal, mediators often rely on open ended questioning to elicit responses from parties  with a view to establishing a story that is coherent in terms of Western narrative discourse. Aboriginal discourse avoids direct questioning, is more responsive to less direct ways of eliciting information, and may have rules about who can speak for or about different people or issues. (Eades 2012, pp. 479-492).

Participants

Mediation in Anglo-Australian disputes reflects the Western presumption that privacy is valued above all. Mediation is private and confidential, limited to the mediator and the disputing parties. In Aboriginal dispute resolution the individual is seen as part of a larger social group.  All members of that group may be involved in resolving the dispute, reflecting the importance of relatedness and consensus building (Sutton 2010, p.5). Whilst this is the practice in many land title claims where there are multiple people interested in a claim, it is not a typical feature of mediation process in the normal course.

Learning from Aboriginal culture

One of the challenges in learning from Aboriginal practices is that many of the ideas in Aboriginal culture flow from the importance of  relatedness community and environment, from hierarchical respect for elders, and from a non-competitive world view.  Euro-centric communities have ceased to share the same extent or depth of relatedness between dozens if not hundreds of kin, and the competitive perception that there is a right and a wrong outcome to any disagreement dissuades collaboration.

In the multicultural society of Australia today, there are numerous cultures, some with strong family and community connectedness. Many close-knit African communities value community adhesion above individual rights. Many Asian cultures traditionally prioritize respect, community harmony, and protocols for indirect communication over confrontational direct approaches (Sourdin 2020, p 642). Individuals of any culture who don’t happen to be educated in the written, fact based, chronological approach to conveying stories favored by Western educated professionals are not attuned typical Western discourse structures.  Many people need time to reflect, to consult with others, and to re-evaluate their position as they move forward. People must expose their lives to disinterested strangers, rather than people whom they trust and respect.

Conclusion

Whilst court processes are rigid and slow to change, ADR options like mediation are flexible and adaptive. However they may unwittingly be informed by traditional Anglo centric perspectives.  There is no one way of approaching dispute resolution, and mediators are nothing if not imaginative and adaptive. Aboriginal culture offers valuable insight into  ways that can support process and theory in this dynamic context.

Striking the Right Balance between Maintaining Confidentiality and Educating the Community about Discrimination

By Dominique Allen

“ADR represents a symbolic harking back to a lost age when caring for others within a communal setting was of pre-eminent importance; it constitutes a reaction against the alienating and competitive style of dispute resolution fostered by an adversarial system.”

– Margaret Thornton, The Liberal Promise (Oxford University Press, 1990, 147)

Image: Unsplash

This year marks 30 years since Emerita Professor Margaret Thornton published The Liberal Promise, a critique of anti-discrimination law in which she argued that liberalism, in the form of anti-discrimination law, will be unable to achieve equality because it can do little to disrupt the power structures that maintain inequalities in society.

As Thornton writes, anti-discrimination law does not give people a right to be free from discrimination; it gives them a right to complain about their treatment. Now – as then – a person who has been discriminated against is required to lodge a complaint at their local equality agency or at the Australian Human Rights Commission. The agency must attempt to conciliate the claim before the complainant can proceed to a civil tribunal or to the Federal Court (other than in Victoria). Courts and tribunals usually attempt to resolve claims via mediation also.

In the chapter she devotes to conciliation, Thornton says that she is ‘equivocal’ about it. Her primary concern was that as the process is confidential, it can have little impact on discrimination in society; its effect is limited to the parties. She didn’t suggest that courts are the ideal forum for discrimination claims though. She writes that complainants find courts “hostile and alienating”, litigation is not well suited to dealing with the types of issues that arise in a discrimination claims, it is costly, and courts are not well equipped to deal with power imbalances, which are common in these disputes. Thus conciliation serves a valid purpose.

In this post, I consider whether Thornton’s concerns about conciliation still apply, drawing on interviews I conducted with barristers and solicitors in Melbourne and conciliators at the Victorian Equal Opportunity and Human Rights Commission in 2017-2019.

One of Thornton’s primary concerns was that although discriminatory acts take place “in the public arena”, the dispute resolution process does not allow public scrutiny of these acts. They must be dealt with confidentially and in a “non-threatening privatised environment”. A public hearing is a last resort.

I share her concern, particularly because in the three decades that have passed, the problem has been compounded by an increased use of confidentiality clauses (often termed Non-Disclosure Agreements).

My research revealed that confidentiality clauses are regularly included in settlement agreements. They prevent the complainant from discussing the nature of the complaint and the terms of settlement. Some are worded so tightly that they prevent the complainant from discussing the claim with anyone, even with a close family member. It is difficult for the law to have an educative effect when claims are privatised and hidden in this way.

However, the process may well educate on an individual level. Conciliators said that just by participating in the dispute resolution process and listening to the complainant talk about their experience, respondents can be educated about their legal obligations and may well introduce changes to their business or workplace as a result. In this way, the process itself becomes part of the solution and a way of addressing harm.

An advantage of conciliation, Thornton writes, is that it creates a space where complainants can achieve small victories which would be “unlikely, if not impossible” within the formal legal system. My interviewees confirmed this. They said that through conciliation, complainants negotiate changes to working arrangements, access to goods and services, modifications to the delivery of education, and compensation payments far in excess of what the tribunal is likely to award. The tribunal, by contrast, orders compensation, often at low amounts which may not be enough to cover the complainant’s legal fees.

So am I equivocal about conciliation? In my view it is an effective way for the parties to resolve the underlying issues that caused the dispute and potentially reach a shared understanding of what happened. They may even be able to maintain a relationship going forward, which is very important in the employment and education contexts.

Being heard and knowing that their complaint has been taken seriously is often very important to complainants. Litigation will not give them that opportunity. Nor are courts likely to make the systemic orders which are needed to tackle discrimination, whereas respondents do agree to wider outcomes at conciliation.

I’m in favour of conciliation with the qualifier that we must be aware of its limitations. Confidentiality precludes the law’s development, it may allow ‘repeat offenders’ to continue undetected and it hides the prevalence of discrimination in the community. We need to find ways to alleviate its limitations.

The balance has yet to be struck between the parties’ desire to contain the complaint and the community’s interest in knowing about the types of discrimination that still exist and how discrimination is being addressed.

What do ‘lay’ people know about justice?

Justice League Entrance

This post is from Charlie Irvine, from the University of Strathclyde in Glasgow, where he is the Course Director on the LLM/MSc in Mediation and Conflict Resolution.  Charlie’s profile is online at https://www.strath.ac.uk/staff/irvinecharliemr/ 

This post is based on his recent publication in International Journal of Law in Context [1]
Image: “Justice League Entrance” by cogdogblog is licensed under CC BY 2.0

 

In June 2017 I travelled from Scotland to attend a symposium on ADR and Justice at La Trobe University, Melbourne.  Being midway through a PhD it seemed an unmissable opportunity to meet other researchers ploughing the same furrow.  It certainly was, and I’m grateful to Lola Akin Ojelabi and Mary Anne Noone for organising it, but in academic life exciting foreign travel usually comes at a price. Three years later they are both to be congratulated for inspiring, editing and contributing to a special edition of the International Journal of Law in Context. I describe my contribution below.  

‘Lay’ people

University teachers faced with marking hundreds of papers have been known to find some crumbs of comfort in students’ more eccentric answers.  I’m not immune to this guilty pleasure, recently learning that ‘another form of ADR is arbitrary.’  More seriously, I am sometimes struck by a common theme among first year law students.  Here are three examples:

‘One of the major drawbacks of mediation is that lay people are in control of justice.’

‘Lay individuals are not capable of concluding rationally justified outcomes.’

‘How will a lay person truly know what is right and wrong if they have no in-depth knowledge of the law?’

However crudely put, these remarks suggest that a few months of legal study are sufficient to persuade young people that the rest of humanity (‘lay’ people)  lack the capacity to achieve or even reason about justice.

When lay people are the decision-makers: mediation

For those of us who practice mediation these sentiments are frustrating.  My clients seem to do a great deal of thinking about justice, and are quite capable of rejecting economically advantageous settlements if they view them as unjust or unfair.  Justice, or resisting injustice, can trump self-interest.

It is not only students who question whether mediation can deliver just outcomes.  A good many lawyers and judges are mediation sceptics and a thriving cottage industry within legal scholarship is devoted to demonstrating its shortcomings.[2]  Even supporters of mediation tend to stress other benefits like cost, speed and good process, leaving justice well alone.

However, academics like a gap because our research can fill it.  A review of the critical literature highlights a gap in our understanding of mediation.  While a lot of attention has been paid to settlement rates, satisfaction, mediator behaviour and procedural fairness,[3] very little research focuses on parties’ reasoning about justice.  And yet each time a case settles both sides must have good reasons for doing so.  What can we learn from their thinking?  I was particularly interested in mediations with unrepresented people, given that represented parties may well defer to their legal advisors.

The research

Scotland has not been particularly receptive to mediation. Some of our most prominent judges have made pointed speeches praising litigation and decrying anything that might divert cases away from the courts.[4]  At the small claims level, however, things are more open and mediation schemes have been operating in the country’s two largest courts since 1999 and 2014 respectively.  These presented an opportunity to interview mediation consumers who experienced relatively little legal or judicial endorsement of the process.  In the end I interviewed 24 people; the article is based on my initial analysis of five interviews.  Qualitative research is less concerned about large, representative samples than in-depth exploration of a complex topic.

Findings

Participants were keen to discuss their thinking.  Not being repeat players in the courts the experience of mediation left a vivid, if not always pleasant, memory.  When asked about what they sought or why they settled they rarely mentioned the law.  However, they expounded a number of themes lawyers will recognise, either as legal doctrines or aspects of practical lawyering.  These included:

  • Restitution – ‘I’m quite happy to take … not be out of pocket from what I intended’
  • Punishing bad behaviour
  • Teaching someone a lesson – ‘he needed to learn that he can’t just get away with things’
  • Holding businesses to account – one participant regretted mediation’s privacy and wished for an ombudsman
  • Pragmatism and tactics – assessing your adversary’s strengths, weaknesses and stubbornness
  • Risk – when you go to court, it’s a 50/50, there’s no guarantees’
  • Empathy for the other party
  • The urge to be, or be seen to be, a fair person (see next paragraph).

Self-presentation[5]

Interviewees are not impartial reporters, and Barnett Pearce warns researchers to watch out for the work language is doing: ‘The world is made, not found.’[6]  An interview is a unique social event and it is reasonable to ask why participants chose some themes and not others.  What were they up to?  What did they want me to understand?

I noticed most tended to answer a question I hadn’t asked: ‘What kind of person are you?’  They seemed particularly keen to portray themselves as fair; e.g. I’m fair … it’s my personal position, you know what I mean’ or I said, this is where I will meet and I said, I think this is fair.’   This self-presentation may play an important role in mediation’s success.  People generally[7] want to see themselves as fair; they probably want the interviewer (me) to see them as fair; and there is a good chance they would also like the mediator to see them as fair.  Perhaps this is why mediation’s success rates and compliance are often greater than sceptics anticipate.

Conclusion

I am not suggesting that these non-lawyers had suddenly developed the capacity for legal reasoning.  Rather, my goal was to counter the reflex dismissal of non-lawyers’ capacity for justice.’[8]  This research reminds us that law and justice are not identical.  A lack of training in legal reasoning does not necessarily mean a lack of interest in or capacity for justice reasoning.

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.

Paying more attention to ordinary people’s justice reasoning may provide valuable clues about the sort of societal norms on which any legitimate legal order must be based.  In the article I argue that theories of justice would do well to take account of this reasoning, proposing that natural law theory’s emphasis on human rationality explains mediation outcomes better than legal positivism, with its emphasis on state backed rules.  Far from being one of mediation’s drawbacks, giving lay people a voice in justice may prove one its most important contribution.

References

[1] Irvine C, ‘What Do “Lay” People Know About Justice ? An Empirical Enquiry’ [2020] International Journal of Law in Context 1-19, DOI 0.1017/S1744552320000117

[2] I summarise the main themes in the article, pp. 2-7.

[3] For example: Charkoudian L, Eisenberg DT and Walter JL, (2017) ‘What Difference Does ADR Make? Comparison of ADR and Trial Outcomes in Small Claims Court’ 35 Conflict Resolution Quarterly 7-45

[4] See Irvine C, (2012) ‘Scotland’s “Mixed” Feelings about Mediation’ SSRN e-library https://ssrn.com/abstract=2713346

[5] Goffman E, (1959) The Presentation of Self in Everyday Life (London: Penguin Books)

[6] Pearce WB, (2006) ‘Doing Research From the Perspective of the Coordinated Management of Meaning (CMM)’ Available from: https://www.taosinstitute.net/Websites/taos/files/Content/5692988/Overview_of_CMM_in_Research_version_2.0.pdf  (accessed 10 June 2018), p. 7

[7] At least as far as these unrepresented people were concerned.  I interviewed two legal professionals later in the study, and both appeared to regard fairness and justice as puzzling and none of their business.

[8] Irvine 2020 (n. 1) p. 1

Of Dry Cleaning, Arbitration, and International Commercial Courts: When Courts Can Learn From ADR

By Dr Benjamin Hayward and Dr Drossos Stamboulakis

‘Those of you who have been to a dry cleaner in the United States may have seen a sign that says, “Fast.  Good.  Cheap.  Pick two.”  What this means is that you can have your dry cleaning good and fast, but it won’t be cheap.  Or you can have it good and cheap, but it won’t be fast.  Or you can have it fast and cheap, but in that case it won’t be good.  What you can’t have is all three …

Some people … seem to think that what applies to dry cleaning doesn’t apply to international arbitration.” [1]

Image: Cosmocatalano, public domain

Alternative dispute resolution might be alternative to the courts, but that doesn’t mean it’s disconnected.

International commercial arbitration and the courts have an important, and mutually beneficial, relationship.  Arbitration relieves pressure on our civil justice system.  Courts use their powers to support the arbitral process and enforce arbitral awards.  Arbitration and the courts also can – and do – learn from each other.

This last notion might seem strange, given that arbitration was traditionally seen as quicker and cheaper than litigation.  The reality now, however, is that both arbitration and litigation can be time consuming and expensive.  In light of this reality, both dispute resolution mechanisms have sought to improve their procedures over time.  When arbitration innovates, courts learn.  And when courts innovate, arbitration learns too.

All the while, both dispute resolution mechanisms must also deal with inevitable tensions arising between speed, quality, and cost.

In recent years, a number of international commercial courts (ICCs) have been established around the world.  To take just two examples, there are ICCs in Singapore and also in China.  They exist as part of those countries’ regular (national) court systems, but they specialise in hearing international commercial cases.  Australia doesn’t yet have an ICC.  Establishing an Australian ICC has been proposed, though the idea is also controversial for some.

If an Australian ICC was to be established, in the future, what could it learn from arbitration?

Potentially, quite a lot: especially given that ICCs aim to attract disputants, and as a result, they might draw inspiration from some of arbitration’s ‘distinctive features’.

One of those features is the power held by parties to select their arbitrators.  Of course, you can’t pick your judge in court.  However, an ICC can be constituted by judges having a range of international backgrounds and having specialist international expertise.  Arbitration is also renowned for its procedural flexibility.  An ICC might take a more flexible approach to the taking of evidence, and the process of proving foreign law.  ICCs may similarly allow for representation by foreign lawyers.  An ICC might further learn from arbitration’s capacity to offer more limited discovery than traditional litigation.

As courts, however, ICCs also bring with them their own benefits.  They include, for example, the judiciary’s contribution to the ongoing development of commercial law via the doctrine of precedent, and its ability to offer greater and more directive case management features designed to promote proportionality in the pursuit of civil justice.  ICCs can also more readily act beyond the parties’ autonomy, such as by joining third parties to proceedings where beneficial and expedient to do so.

Though historically thought of as rivals, arbitration and the courts have always learned from each other. The genesis of ICCs merely makes this process explicit, shedding light on the ongoing and conscious hybridisation of dispute resolution procedures in commercial dispute resolution.  It is this potential for greater responsiveness to the needs of commercial disputants, premised upon procedural innovation in the pursuit of just and efficient outcomes, that underpins the potential of a future Australian International Commercial Court.

– – –

[1] Jennifer Kirby, ‘Efficiency in International Arbitration: Whose Duty Is It?’ (2015) 32(6) Journal of International Arbitration 689, 690.

The authors are members of the Monash University Faculty of Law’s Commercial Disputes Group.

Challenges and Opportunities for Asia-Pacific International Arbitration: Symposium Report, and News on a Forthcoming Publication

By Dr Benjamin Hayward, Professor Luke Nottage, and Dr Nobumichi Teramura

Photo: Faypearse, Creative Commons

On Friday 15 November 2019, Sydney Law School hosted the ‘Challenges and Opportunities for Asia-Pacific International Arbitration’ symposium.

The event addressed a range of dispute resolution issues: international commercial arbitration, investor-State dispute settlement (including investor-State mediation), and the rise of international commercial courts.  Academics, practitioners, and (both current and former) judges were in attendance: ensuring that a wide spectrum of views were addressed throughout the day.

The symposium focused on dispute resolution in the Asia-Pacific region.  This is a topic of significant interest to the Australian arbitration community.  As far back as 2009, the then-Attorney General Rob Hulls introduced reforms to Australia’s International Arbitration Act aiming to promote Australia as a regional dispute resolution hub.  More than 10 years later, this is a goal to which Australia still aspires.

The symposium addressed arbitration in the Australian, New Zealand, Japanese, Indonesian, Hong Kong, and mainland Chinese contexts.  It followed a counterpart event hosted by the University of Hong Kong in July 2019.

The symposium’s international comparisons provide much food for thought for the Australian arbitration community, as we seek to continually improve the local landscape.  For example, what degree of confidentiality should be preserved in Australian arbitral proceedings?  And what lessons can we learn from arbitration experience, in the region, relating to the possible future establishment of an Australian international commercial court?

A collection of papers presented at both events will be published in late 2020 (or early 2021) in a Kluwer volume titled New Frontiers in Asia-Pacific International Arbitration and Dispute Resolution.  Details of the volume, including links to pre-publication versions of some papers, are available here.

Of particular interest in the Australian context will be:

* Professors the Hon Marilyn Warren and Clyde Croft’s chapter titled ‘An International Commercial Court for Australia: An Idea Worth Taking to Market’;

* Albert Monichino SC and Nobumichi Teramura’s chapter ‘New Frontiers for International Commercial Arbitration in Australia: Beyond the “(Un)Lucky Country”’;

* Luke Nottage addressing ‘Confidentiality and Transparency in International Arbitration: Asia-Pacific Tensions and Expectations’; and

* Luke Nottage and Ana Ubilava’s chapter on ‘Novel and Noteworthy Aspects of Australia’s Recent Investment Agreements and ISDS Policy’.

Readers of this blog might also be particularly interested in Stacie Strong’s chapter titled ‘Promoting International Mediation Through the Singapore Convention’, that Convention also having been addressed at the December 2019 ADRRN Roundtable.  This chapter will mention some empirical data from a study addressing the use of mediation in resolving international commercial disputes.

Interestingly, while Australia’s geographic isolation is thought to be impeding its emergence as a regional dispute resolution hub, COVID-19 has led to the rapid adoption of virtual hearings in civil litigation and in arbitration.  The pandemic may have unintentionally highlighted a means by which Australian arbitration and an Australian international commercial court could flourish in the region: notwithstanding the unavoidable ‘social distance’ between Australia and our neighbours.

These recent developments, post-dating the symposium, will be addressed in the forthcoming Kluwer volume.  They will be of great interest to those invested in Australia’s potential as a venue for international commercial dispute resolution.

International Commercial Arbitration, its Application of the Law, and the Flexibility of its Process

By Dr Benjamin Hayward

Photo: Dennis Jarvis, Creative Commons

In a previous contribution to the ADRRN Blog, I argued in favour of taking a little bit of flexibility away from international commercial arbitration.

In my previous post, I noted that while arbitration is ADR, it remains a type of formal dispute resolution.  It also involves application of the law.  Still, where a contract doesn’t include a choice of law clause, arbitrators have to identify the law they will apply.  My doctoral research explored the significant discretion arbitrators have in this regard.

That discretion is a problem if parties chose to arbitrate because they want enhanced certainty about their legal rights.  It’s even more problematic in some particular categories of case where arbitrators have to identify the governing law even after the parties tried to agree on this issue themselves.

I’ve been thinking a bit more about this topic following a recent episode of The Arbitration Station podcast, which included a really great discussion about becoming an arbitrator.  Co-host Brian Kotick made some interesting observations about this issue, set in the context of how arbitrators decide their cases:

‘[I]t’s all discretionary at the end of the day and you can’t really predict universally what’s to be decided … I think it depends on how you approach being an arbitrator.  I know some arbitrators, their approach is “I’m only going to decide on the arguments – legal arguments and factual arguments – that are presented to me”.  And if you take that approach I think it’s much easier because your intellectual curiosity will not lead you in the wrong direction …

Another approach is finding justice – “capital J justice” – in which case you’re going to kind of take a more active role, do your own independent research perhaps … in which case it’s much more difficult of a task …”

So is arbitration about applying the law, or is it about more general notions of commercial justice?  Or is the true position somewhere in between?  Parties can specifically agree to give arbitrators the power to decide based on principles of equity and fairness, but this is extremely rare.  What, then, is the best view of arbitration’s decision-making process where they don’t do so?

In 2013, the High Court of Australia decided a constitutional challenge to the validity of an important part of Australia’s International Arbitration Act.  In upholding the legislation, it conceptualised the role of courts in enforcing arbitral awards as holding the parties to their initial agreement to arbitrate: rather than merely rubber-stamping arbitrators’ legal analyses.  The Court also held that there is no strict legal rule, in international commercial arbitration, that arbitrators must apply the law correctly.

This gets us part-way to the answer.  For a bit more, we can look to the grounds for challenging arbitral awards.

Under the Model Law and the New York Convention, both adopted in Australia, these grounds don’t include an error of law.  They do include public policy grounds.  Public policy doesn’t cover arbitrators’ ordinary legal errors, but it might cover very significant infringements of fundamental legal principles, such as the rule against double recovery.

Of more interest to me, however, is the ground relating to arbitrators not following the parties’ agreed procedure.  Application of the law is a matter of substance, but identifying what law to apply in the first place is a procedural question.  As I’ve discussed previously on this blog, arbitration laws and rules give arbitrators significant discretion in identifying the governing law.  However, they do still set out at least broad frameworks for making that decision.

While potential mistakes in the law’s application are just part and parcel of choosing arbitration as a form of ADR, in my view, parties remain protected against arbitrators violating the procedure required for identifying that law in the first place.

This is an idea I’ve been interested in for a while now.  What does it say about the exact nature of decision-making in international commercial arbitration?  I’m not yet sure, but I’m looking forward to exploring that question in my future research.