Call for Papers: 9th ADR Research Network Round Table and Civil Justice Research Conference (1-2 February 2021)

Featured

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.    

Proposals are due by 17 December 2020.

For further information, please contact:

2020 Network President: John Woodward via adrresearchnetwork@gmail.com

Full details here:

Undergraduate dispute resolution research

Many of us teach university students about dispute resolution and encourage them to engage in their own research. In 2018, Associate Professor Becky Batagol of Monash University invited her students in the Non-Adversarial Justice unit at Monash University to prepare blog posts, and she published some on this ADRRN blog, like this one. I was inspired by Becky’s use of blogs as an assessment task. When I taught a Dispute Resolution elective for students at the University of Tasmania in semester 1, 2020, I asked my students to present their research projects in both a research essay and blog or vlog format. This month I will be posting some of those blogs or vlogs.

Noogz, CC BY-SA 3.0 https://creativecommons.org/licenses/by-sa/3.0, via Wikimedia Commons

To provide some context, and in the spirit of sharing dispute resolution teaching ideas, I will explain the dispute resolution research assessment task in more detail in this post.

Task Description

You will conduct your own preliminary research to identify a research topic that responds to one of the following questions:

1. Identify an issue for lawyers related to dispute resolution. What are the challenges and opportunities for the legal profession?

2. Identify a specific context in which dispute resolution processes are used. What are the challenges and opportunities for access to justice for users of that process?

You need to choose a specific issue or context around which to frame your research assignment. There is considerable scope for the exact topic that you choose, so long as you make sure your work answers the question.

You have been instructed to explore “challenges and opportunities” so that you practise the analytical skill of considering both positive and negative consequences or factors arising from the issue or context.

I assigned two questions, because I like to encourage my Bachelor of Laws students to focus upon issues for lawyers in dispute resolution, but not all of my students were studying a LLB degree. All students were free to choose to answer either question. The instructions continued:

There are three items that you will produce from your research assignment:

1. Topic proposal – a template will be provided (1-2 pages).

2. Research Essay of 3000 words maximum.

3. Either a blog post of 300-500 words or a 3 minute vlog post using only one visual image. This item should present your “elevator pitch” of your research assignment to a general audience.

Feedback will be provided about the topic proposal.

Both the research essay and blog or vlog post will be graded, and the grade standard will be assessed against both items combined. Criteria are weighted equally.

Marking Criteria

 CriterionMeasures Intended Learning Outcome:
Criterion 1Identify, explain and justify the topic1 Identify, explain, justify and critique the nature and theories of the various dispute resolution processes.
Criterion 2Critically analyse the issue and answer the question4 Critically analyse and problem-solve issues arising in non-judicial dispute resolution processes.
Criterion 3Communicate effectively5 Communicate and collaborate effectively.

Choice of Research Topic

Allowing undergraduate students to choose their own research topic ensures that they are able to research and write about something that drew them to choose the dispute resolution elective. My unit content introduces a range of issues, techniques, styles and contexts for dispute resolution – I think of it as an introductory smorgasbord. My aim is to help students identify their existing understanding and to challenge themselves with new ideas or unfamiliar approaches. The research assignment provides an opportunity to engage deeply with a particular issue, to find relevant literature and test students’ thinking. My hope is that some students will enjoy the research project so much that they will contemplate dispute resolution research as a career option.

One of the challenges in a self-chosen research topic is that some students feel stifled by lack of existing knowledge or overwhelm, and have some trouble identifying a workable research topic. These students were encouraged to meet with me to have a conversation. Typically, the first question that I asked them was “why did you enrol in this unit?”, followed by “what were you hoping you would learn about?”. Through conversation we could develop ideas and I could suggest that they start with some preliminary reading about a general area, to help them to find the specific topic that they wanted to write about.

Another benefit of a “choose your own topic” style assignment is that the chances that I would be exposed to new and exciting ideas and perspectives on dispute resolution was increased. Of course, not everyone takes a novel and original approach in such a unit, but not having to read 50 takes on the same narrowly expressed topic was a much more pleasurable assessing experience overall!

Topic Proposals

The 1-2 page topic proposals were due in Week 4 of a 13 week semester, but the due date was amended to “when you can” due to the COVID19 pandemic. The template invited students to identify themselves, and then to provide the following information:

  • Title of Paper
  • Issue to be Explored
  • Proposed Scope and Structure
  • Relevant Resources Identified So Far

This hurdle task provided an incentive to start planning the research assignment early in semester, and gave me an opportunity to give tailored feedback to each student about the appropriateness of the topic that they had identified, whether their scope and structure was feasible for a piece of only 3000 words length, and also to provide feedback and suggestions about the resources that they had identified at that early stage.

Research Essays

The essays are a form of assessment that students are familiar with, and a standard way of building and assessing academic writing skills and research quality.

Blogs

Blog writing hones our ability as researchers to present our ideas to a general audience in an accessible and succinct way. It has relevance to graduate roles where presenting short form summaries is often required in briefings, information sessions, websites and presentations.

The instructions for students who chose to prepare a blog post were as follows:

For an excellent introduction to academic blogging see Assoc Prof Becky Batagol’s post on the Australasian Dispute Resolution Research Network (ADRRN)’s blog Blogging Basics for Beginners: Or, how to write a really good academic blog post. The best blogs submitted in this unit may be suitable for a guest post on the ADRRN’s wordpress site.

One image may be used to accompany the words in your blog post. Ensure that you attribute the copyright owner and have permission to use the image.

Vlogs

To give students an opportunity to make an oral presentation of their work, I also offered the option of a vlog styled on the 3 minute thesis competition for higher degree research candidates. The instructions for students who chose to prepare a vlog post were as follows:

The 3 minute single image video vlog option is modelled on the 3 minute thesis competition. See the competitor guide for guidance about preparing your “pitch”.

I fully recommend vlogs as refreshing relief in the marking season.

I hope you enjoy the posts from some of my students later this month.

Mediation and DR research in 2020 – Part 3.

November 2020 (c) A. Boyle

Collaborative and innovative research approaches

In this series of blogs, there has been acknowledgement of the gaps in what is known about mediation, and some ideas for involving end-users and stakeholders in research projects.  This final blog in the series considers innovative and cost-effective approaches and methods, in particular for empirical studies of what happens during, say, mediation.   

In all research fields, it is important to have a theoretical framework whose philosophical structure supports the explanation and interpretation of data.  One recently devised framework with the potential to support mediation and DR research is agential realism.  Although, at first glance, a complex set of concepts, it proposes a completely different approach to the complexities of social interaction and human behaviour, and is being used increasingly to investigate them – and providing valuable and unexpected results.

Agential realism is not concerned with causation (ie cause and effect) or concepts of right and wrong.  It focuses on what “is”, accepts that everything is in a perpetual state of “intra-action” with everything else, and that this constant intra-action defines existence.  Everything (including space and time) is constantly and cooperatively exchanging with and influencing everything else.  Thus, researchers cannot be objective because everything within a research project is necessarily influencing everything else.  The research methods and instruments are as much a part of the study as are the participants and the researchers.

This theoretical approach cannot focus on single points of influence (ie power) nor can it consider isolated points of view or perceptions – it focuses on the entangled, inseparable engagements of everything with everything, accepting all viewpoints and intra-actions, and observing how they build on, with and through each other.  This has clear application in mediation research where it is highly likely that what happens during mediation is influenced in various ways by all participants as well as by additional influences brought to the mediation by each participant.

The approach of agential realism accommodates collaborative research approaches such as participatory action research and participatory ethnography.  The participatory approach emphasises the importance of social accountability to end-users (such as practitioners and disputants) and other stakeholders (such as program administrators and policy-makers), as well as ensuring transparency and accessibility in research reporting.

Participatory action research

In participatory action research, study participants are co-researchers and contribute to defining the purpose of a study, its design, its methods, the interpretation of data and the reporting of the study.  For example, if a study were seeking to explore the role and influence of repeat players in, say, mediation, the research team could include people who are themselves repeat players and could provide insights into their role.

Participatory ethnography

Ethnographic approaches have long been applied in anthropological and sociological research and are typified by the researcher being an embedded observer of a social setting or a social group.  A recent, and illuminating, ethnographic study of what happens during mediation involved the researcher being an embedded observer of commercial mediations in London, during a twelve-month period. 

In participatory ethnography, the researcher does not seek to be an “objective” observer.  Rather, the researcher becomes part of the community being observed and participates in the complete social context and its setting, becoming part of its norms, power differentials and complex social dynamics.  Ultimately, the participating community, or social group, contributes to the whole research project (ie purpose, design, methods, interpretation and reporting). 

Ethnography does not have to be limited to a single long-term investigation – studies can be short and targeted, and can include multiple sites or groups for comparative studies.  Online interactions such as blogs and social media lend themselves to ethnographic research – there is now software designed specifically to assist textual analysis of so-called micro-posts such as Twitter – analysis of blogs and microposts has been used in other fields to track research trends and developments.  Artificial intelligence can also be harnessed to assist in ethnographic observations and in analysis of verbal and nonverbal communications.

Textual and attitudinal analysis

A separate area of research is the examination and analysis of the language used to express final terms of agreement, with researchers seeking to explore, for example, how the words and phrases of the terms of agreement reflect various levels of “self-determination”.  For example, one such analysis suggested that a formalised and legalistic agreement style might reflect reduced disputant participation in the writing of the agreement.  Analysis of agreements might provide insight into different and unexpected aspects of influence at the conclusion of a mediation.  When such analysis includes different contexts, it might also provide useful comparative data.

Any of these approaches could be applied to explore attitudes to conflict across different cultural and socio-economic settings, in itself providing important baseline information likely to contribute to the ongoing development of affective approaches to managing and resolving conflicts and disputes. 

In summary, to gain more insight into what happens during mediation, and to fill the knowledge gaps about how and why the process works, it is important to develop collaborative and inclusive approaches that include end-users and stakeholders.  There is also much to learn from developments in other research fields, and from experimenting with innovative ideas and methods.

References

Adrian, L., and S. Mykland, ‘Unwrapping Court-Connected Mediation Agreements’ in A. Nylund, A. K. Ervasti, and L. Adrian (eds), Nordic Mediation Research (Springer Open, 2018).  

Barad, K., Meeting the Universe Halfway: Quantum Physics and the Entanglement of Matter and Meaning (Duke University Press, USA, 2007).

De Girolamo, D., The Fugitive Identity of Mediation: Negotiation, Shift Changes and Allusionary Action (Routledge, UK, 2013).

Mediation and DR research in 2020 – Part 2

November 2020 (c) Alysoun Boyle

Who can do research?

Anyone can be a researcher, as shown by the diverse work undertaken by the Australian Citizen Science Association (<https://citizenscience.org.au/>) where current projects include a selection of wildlife and environmental censuses, ongoing assessment of bushfire recovery in Queensland and NSW, and responses to restrictions associated with the spread of the coronavirus (Covid-19) (see <https://citizenscience.org.au/ala-project-finder/>).

While citizen science does provide opportunities for the field of mediation and DR research, so, too, do collaborative research networks.

Collaborative research networks

While it is prudent to have a research team that includes trained and experienced researchers from more than one discipline, team members can also be from quite diverse personal and professional backgrounds, increasing the scope of the team’s work, and contributing to credibility of any project.  One useful step in this area could be the development of “collaborative research networks”.  The ADRRN could be seen as a collaborative research network and the Law and Society Association (USA) uses them to facilitate researcher collaboration. 

Where stakeholders become involved in collaborative research networks, they become involved in what we, as researchers, are doing, and they contribute to what our research achieves.  Collaborative research networks could be more diverse if they were to include researcher members as well as interested people from other professions such as lawyers; policy-makers; mediation/DR program and service administrators; mediators and practitioners; and, of course, disputants (or potential disputants).  Such diverse networks would create strong relationships between researcher and end-users, providing a rich source of information for research proposals, research design, and research methods (in particular for empirical studies).

The perspectives of mediation and DR “consumers” (ie disputants and potential disputants) are an important (and missing) component of research design.  Their input could be accessed through the inclusion of community members (or representatives) from a variety of social and cultural settings.  An example is the routine inclusion of consumer health representatives on committees overseeing the provision of health services in Australian States and Territories, as well as in many other countries.

Collaborative research networks can be established to oversee specific projects; however, they can also be ongoing discussion and information forums.

Collaborative studies of “effectiveness”

Collaborative research networks are likely to be a valuable research “tool” for overcoming some of the constraints mentioned in last week’s Blog.  For example, they lend themselves to exploration of key effectiveness measures in mediation, including measures of participant satisfaction.  A network could explore how mediation effectiveness, and participant satisfaction, are defined and measured in various settings (eg services in association with courts/tribunals; with community-based services; with business and construction services; with family services; with ombudsmen; with workplace and employment disputes; with environmental disputes; and the various approaches of different social and cultural groups).

In discussions among its members, a collaborative research network could investigate the influence that differing interpretations of “effectiveness” might have on the nature of the mediation process, the role of the mediator, and the participation of the disputants.  In turn, this could lead to the emergence of a common understanding of effectiveness that accommodates a range of contextual details and facilitates comparative studies of effectiveness across different mediation settings.

Collaborative studies of models and styles of mediation practice

Collaborative research networks could provide a forum for the exploration of models and styles of mediation practice.  Grounded theory provides a useful basis for examining some key issues in mediation.  In summary, grounded theory is a research approach in which the researcher observes and collects information (avoiding the influence of their own pre-conceptions and views) from which a subsequent theory is developed, with further research examining the feasibility of that theory.  Using a grounded theory approach, a network could discuss relevant issues among its members such as: ascertaining the key actions and techniques that mediators consider are associated with each recognised model or style; clarifying with program and service administrators the influence of policy directives on preferred models and styles; and exploring the influence of setting, context and mediation participants on a mediator’s choice of model or style.

Collaborative access to mediation

One constraint on mediation research not included in last week’s Blog is the effect of confidentiality on researcher access to mediation.  Although the National Mediator Accreditation System does allow access for research purposes, many programs and services do not.  Interpretations of confidentiality can prevent access to baseline data, to observations of mediation, and to surveys of mediation participants, creating an obvious and significant gap in what can be known about the practice of mediation. 

Where members of a collaborative research network include lawyers, program and service administrators, mediators, and disputants, those members could explore approaches for enabling research access that do not compromise the integrity of the mediation process, or of mediation programs and services.

Collaborative ethics

Another constraint not included in last week’s Blog is the restrictive effect of ethics approvals for studies of mediation.  The effects emerge from the complex process of seeking ethics approval, as well as from the limitations imposed by approval conditions.  Were ethics bodies to be included in a collaborative research network, it might be possible to develop ethical guidelines for mediation research that maximise researcher access to relevant information while protecting the rights of mediation participants. 

One research approach might be for research project teams to include mediation participants and representatives of ethics bodies who participate throughout the whole research undertaking rather than ethics bodies’ involvement and input being limited to a single approval issued before the research commences.

Benefits of collaborative networks

There are clear benefits to a research approach based on collaboration among diverse participants, including access to a broad range of diverse perspectives, increased richness in research design, and the limited costs of having such networks.  An indirect benefit relates to research support.  Where sector stakeholders understand the research process, they are likely to be more supportive of it.  Collaborative research networks have the capacity to involve stakeholders in research projects and expose them to important concepts and ideas about mediation and DR, and, in particular, to the conceptual frameworks of research, and of qualitative empirical research in particular.  Such participatory exposure might enable a shift in research focus in this field – away from quantitative analysis of settlement rates confirming that mediation “works”, and towards qualitative approaches designed to provide more nuanced information about how and why the process works.  Such a shift could be a major contribution to the refinement of public policy in this area. 

Such a shift in research focus might also contribute answers to the perennial question of “what works” in mediation practice.

Mediation research in 2020

Photo copyright 2020 A. Boyle

This month the ADRRN blog focuses on research and is seeking your input about interesting and innovative approaches to studies of mediation.  This post sets the research context by summarising some of the key knowledge gaps and research constraints. Although the blog will focus on mediation, a process that has enjoyed a relatively long research focus, it is likely that there are similar knowledge gaps in relation to other DR processes, and that investigations of them have similar constraints.

Your ideas

Post descriptions of your research projects that have incorporated interesting or innovative approaches.  What was innovative?  How did that affect the whole project and its results?

Knowledge gaps – mediation

Last year, attendees at the National Mediation Conference in Canberra responded to a survey seeking ideas for future mediation research.  Most participants were practicing mediators and the most frequently submitted idea was “to find out what works”: mediators wanted to know more about the mediator skills and techniques that lead to durable agreements.  They also wanted to know which mediator style, or model of practice, is the most effective.  Both of these knowledge gaps are widely recognised.  

Other key knowledge gaps about mediation include a lack of information about mediation outside courts and tribunals and beyond institutional programs and services – in other words, a lack of information about private mediation.  There is also limited information about specialist mediation services such as those for addressing disputes arising from natural disasters or from resource management or from artistic misappropriation.

Very little is known about influences on the mediation process itself and on the role of the mediator, and how those influences might affect what happens during the mediation.  Such influences are likely to include the context and setting of the mediation, the experience and status of the disputants and their advisers, and the experience and status of the mediator.  In addition, despite widespread assumptions about mediator skills, it is not known what mediators actually do (ie their actions and microskills) and what might influence their choice of what to do.  

There are many knowledge gaps in models or styles of mediation practice, such as which mediator actions are typical of each model; how settings and contexts influence the mediator’s choice of model or style; and, among mediators who do apply recognised models of practice, how consistently those models are applied. 

A significant knowledge gap exists about people’s attitudes to conflict and to its management, including responses to “mediation” in Indigenous and other diverse cultural and socio-economic settings.

In some ways, the gaps in what is known about mediation are likely to limit investigations of the process’s effectiveness.

Some constraints on traditional research

Research support and funding

One important constraint on mediation research is the limited funding and support it receives.  Future research innovations are likely to need to be very cost effective if they are to be supported.

Lack of conceptual clarity

It is widely acknowledged in the mediation literature that there is not a clear and consistent understanding of what is meant by the term “mediation”  In addition to the well-reported lack of definitional clarity about mediation, it is not always clear how much of the preliminary work is included when researchers investigate “mediation”; how much of the post-mediation period is included in terms of the delay before implementing an agreement; or how much of a longer time-lag is included that might inform an investigation of mediation’s long-term effectiveness.  Nor is there regular consideration of the duration of a mediation as a component of the process: for example, whether the concept of mediation can include a process that lasts a full day as well as a process that occurs during several sessions convened over separate days, as well as a process that lasts one hour.

There is not consistency or clarity about what constitutes a mediation outcome, what that outcome might contribute to establishing the “effectiveness” of the mediation, and whether a focus on outcomes detracts from consideration of the mediation process itself and what happens within it.  For example, outcomes may be limited to the achievement of an agreement and/or the terms of that agreement, or they might include the disputants’ levels of satisfaction (with the mediation process and/or the mediator and/or the outcomes), or they might include positive changes in the disputants’ communication with each other, or they might include positive changes in the disputants’ relationship with each other, or they might include the matter being removed from a court or tribunal list – or they might include any combination of these. 

Finally, there is not consistency in what constitutes a mediator’s style, or approach, or model of practice.  For example, many investigations of mediator style have been limited to checking that certain key stylistic indicators are reported to have occurred during the mediation, such as “Did the mediator facilitate conversation between the disputants?”  Answering “yes” to the question does not provide information about what the mediator did or about what happened; importantly, it does not provide information about how the researcher chose to interpret the meaning of “facilitate”. 

Representative diversity in research participants

Mediation confidentiality is often cited as a reason for limiting researcher access to the process, including to basic mediation data, and to mediation participants.  These limitations constrain researcher access to a broad sector of the community and prevent their views from informing what is known about mediation.

Researchers recognise that the people who participant in empirical studies tend to be selected from readily accessible sources, including structured mediation programs such as those associated with courts and tribunals.  In most studies, various parts of the population are not differentiated for the purposes of the study.  For example, there is very little differentiation of research data according to socio-economic status, or educational attainment, or sex, or age-groups. 

Data collection and measurement

An additional constraint concerns how key concepts (such as those mentioned above) are to be measured or whether they are even measurable.  For example, it is very difficult to devise a reliable measure for ascertaining levels of disputant satisfaction, or whether the disputants’ communication with each other has improved (either during the mediation or more durably).  There are many aspects of research design that are known to interfere with the reliable collection and measurement of data, including various types of inherent bias (on the part of the participants, the research setting, and the anticipated reporting of the research), and the influence of the researcher’s own experience and preferences.

Research approaches

Mediation research needs some innovative approaches, and over the next couple of weeks, this blog will consider this issue.

Resources

Three articles for further reading about innovative research approaches.  One looks generally at developments in empirical research in the behavioural sciences, and two report on the incorporation of psychometric modelling in surveys distributed in legal settings.

Druckman, D., and W. Donohue, ‘Innovations in Social Science Methodologies: An Overview’ (2020) 64(1) American Behavioral Scientist 3.

Pleasence, P., and N. Balmer, ‘Measuring the Accessibility and Equality of Civil Justice’ (2018) 10 Hague Journal on the Rule of Law 255.

— , ‘Development of a General Legal Confidence Scale: A First Implementation of the Rach Measurement Model in Empirical Legal Studies’ (2019) 16(1) Journal of Empirical Legal Studies 143.

A Wake-Up Call for Mediation!

The following review of Mediation Ethics: From Theory to Practice is written by Paul Kirkwood, a Commercial Mediator and Litigation Solicitor in Scotland. It originally appeared at https://paulkirkwoodmediator.co.uk/2020/11/09/a-wake-up-call-for-mediation/.

Mediation Ethics: From Theory to Practice by Rachael Field and Jonathan Crowe, is, despite its low-key title, a refreshing, challenging and for mediation, controversial book – it deserves your attention.

Self-Determination, Informed Consent and Professionalism are the Primary Principles which should underpin Mediation in the Modern Age. In this new Mediation Ethic – Neutrality and Impartiality need to take a back seat. Is this a moment of truth for Mediation?

The fundamental premise of the book is that the time-honoured sacred cows and principles thought to underpin mediation – Neutrality and Impartiality – need to be relegated to being tools (or potential mediation techniques) in the mediator’s kit, rather than seen as foundational principles. Instead mediators should embrace the real foundational principle of mediation – Relational Self-Determination armoured by Informed (legal?) Consent and a Professionalism that should include a ‘fiduciary’ duty to all parties.

In support of this premise the authors propose a new ‘contextually driven’ paradigm of mediation ethics that is not rule-based, but is driven by the context of the situation in which a decision about how to intervene by a mediator, must be made. ‘As contextual ethical approaches do not prescribe a specific path to resolving a dilemma, they require competent, discretionary, professional judgements that take account of the circumstances of individual cases and respond to them reflectively and relationally’ (Page 213 and see footnote 5).

This idea of contextual ethics (or ethics derived from practice) is compared to the ‘rule-based’ or ‘regulatory’ approach to ethics taken in the legal profession, which in the context of mediation is regarded as being ‘too fixed’ and ‘limiting’ or ‘an impediment and a barrier’ to the creativity necessary for mediators in fluid fast moving circumstances. Additionally, the authors reflect on the hierarchical, formalistic and coercive nature of regulatory systems. The authors in  anticipating a response from the wider profession  to what might be seen as an almost ‘Proudhonian’ proposition (anything goes),  suggest that they support neither a rule-based/regulatory approach, nor a strictly contextual (or practice based) approach, ‘Rather, a guided model that sits between these two extremes is most appropriate because it provides a principled framework that offers practical guidance for mediation training and practice’ (Page 175).

So far so good, but I may have put the cart before the horse. Why are the authors dropping neutrality and impartiality as foundational principles when these concepts are fundamental to the way in which so many mediators perceive themselves and their role in mediation?

This book undertakes a thorough review of the concepts of neutrality and impartiality in mediation and how they came to be imported there from law and legal practice, and notes how they have been used as a means of justifying the practice or profession of mediation as being something that is equally as good as litigation or arbitration as a means of dispute resolution. The authors posit that the importation was not necessary because (1) it is the principle of self-determination that sets mediation apart from these other forms of dispute resolution and (2) that principle is what makes mediation ‘good’ and ‘fair’. It’s not about the imposition of a decision on parties by a third-party – parties self-determine their own outcome with the help of an engaged, active and interventionist mediator.

In any event the authors argue, the concepts of neutrality and impartiality turn out, in the context of mediation, to be deeply flawed and actually work to actively prevent and forestall mediators being allowed to intervene in a way that would enable them to provide support to parties which would enhance party self-determination. Take for example providing parties with information (legal or about legal systems) that would assist in ensuring that they do have the ability to make a decision on the basis of informed consent. A duty of strict neutrality and a regulatory requirement not to intervene would prevent the provision of such information and ultimately mean, in an unbalanced power situation, that the mediators’ professed neutrality or impartiality would simply lead to a reinforcing of the power imbalance where one party would make an uninformed decision and only the other party would be truly self-determining. As the authors say ‘Our proposed conceptual framework for a new ethical paradigm in mediation focuses on informed consent as the primary basis for achieving party self-determination. It is informed consent, not mediator neutrality, in our view, that provides the mechanism by which authentic party self-determination is achieved’ (Page 181).

The authors argue that in their model of mediation ‘the ethical facilitation of party self-determination is the core objective of the mediator’s role’ (Page 181). In some situations, for example where the power dynamic between parties is equal, a mediator can appropriately adopt a neutral or impartial stance to achieve this – but neutrality/impartiality are not necessarily required to realise this value. Where there is a power imbalance, mediators may require to act in a way that contradicts the ethics of neutrality as it is currently understood in order to support party self-determination (Page 181).

The authors identify four core characteristics of party self-determination: (1) active and direct participation by the parties in communicating and negotiating; (2) party choice and control over the substantive norms that guide their decision-making (for example law); (3) party involvement in the creation of options for settlement (it is envisaged that mediators can play an active role in helping parties develop options); (4) party control over whether to come to an agreement, and if so the terms of that agreement.

For the authors the imperative of pursuing party self-determination provides the ethical driver for mediators’ actions and decision-making. Informed Consent and Professionalism provide additional ethical checks on the mediator’s practice (Page 183).

In this regard the authors note that for self-determination to lead to agreements that can be considered principled and fair, genuine self-determination has to be achievable in practice (page 193) – the way to ensure this is by using Informed Consent and Professionalism.

In the authors’ view, Informed Consent (which has also been borrowed from legal doctrine) can be supported by the mediator in a number of ways. For example, by the provision of information to unrepresented parties (page 197). However, they consider that there are three elements to achieving real Informed Consent: (1) maximisation of party control through the use of intake process and party preparation strategies; (2) ethical mediator activism in support of informed consent; (3) party access to legal and other external advice.

The intake process should be used by mediators to assess a party’s capacity for informed consent and to diagnose that party’s needs in achieving it – this would include assessing their ability to access necessary legal/professional advice and also their capacity to negotiate effectively. Where these capacities appear wanting, the mediator should take active steps to help ‘remedy’ the situation by pointing the party to sources of help – ‘’or making ‘warm’ (actively assisted) referrals to relevant services. In this sense, intake processes can be considered as a way to screen parties into mediation, and also into the most appropriate model of mediation for their dispute and their capacity for informed consent’’ (Page 200).

The intake process also provides space for mediators to ensure that parties maximise their own control and should centre ‘on capacity building through mediation preparation or coaching, ensuring that the parties know and understand the process and its principles, and that they have developed strategies for their participation’ (Page 201).

The authors also consider that ‘ethical mediator activism’ is a necessary part of supporting party self-determination by facilitating informed consent of individual parties, and that if necessary, this may be required in the form of information and even advice (page 204). Quoting Weckstein, the authors note, ‘if a party cannot or will not access external advice to support their informed consent’, then ‘it should not be considered improper for the mediator to serve as a source of pertinent information’ because ‘educating disputants about relevant norms and information enhances, rather than undermines, party self-determination’ (Pages 204/205).

The authors observe that under the current neutrality centred ethical paradigm, mediators have to differentiate between the provision of ‘information’ and the provision of ‘advice’ because the latter would be ‘unethical’, even if within the mediator’s technical competence. They contrast that with their proposed new ethical paradigm and note that ‘the critical ethical distinction is not whether a mediator has provided information as opposed to advice, as both information and advice can potentially ethically support party self-determination. Rather, in terms of the professional ideology articulated (subsequently) the issue is whether the information or advice is within the technical competence of the mediator, and whether it is provided as an appropriate fulfilment of the mediator’s fiduciary duty to the parties’ (Page 205). In considering this ethical duty it behoves the mediator to decide whether a party has the capacity to use the information or advice proffered in a genuinely self-determined way. If the party doesn’t have the capacity, and is likely to accept the advice as a decision, then the provision of information or advice in those circumstances would be unethical.

The final aspect of the authors’ proposed new mediation ethics ‘is an ideology of professionalism centred on technical competence and a fiduciary-like obligation to the parties (Page 207). This is necessary because ‘an explicit professional ideology is important to providing boundaries to the more interventionist and activist role envisaged for mediators in the proposed new ethical paradigm’ (Page 208).

A fiduciary duty arises (1) because of the high degree of trust placed by the parties in the mediator and the power that the mediator has in the whole process and (2) because the practice of mediation, in the context of the rule of law, constitutes a service to public welfare (Page 209).

In conclusion the authors advise that ‘The mediation community is therefore facing a moment of truth. Mediation practitioners must reconsider, and reframe, their identity and their role; furthermore, they must respond to the serious obligation that results from the authority and power inherent in their position’ (Page 210).

This is a revolutionary concept and it remains to be seen how the mediation world will react and what impact this will have on it.

Speaking for my own part, I have never considered neutrality or impartiality to be possible – these notions are idealistic, not realistic. I agree with the authors that mediation can only be fair if parties are able to self-determine on the basis of parties genuinely informed consent – and that there should be an ethical and indeed fiduciary duty, as conceptualised in this book, on mediators to ensure that parties are genuinely informed. This, by definition, requires neutrality and impartiality as foundational principles to fall by the wayside.

In my own mediation practice, I explain to parties that I am not ‘on either of their sides’, but rather that I am there to try and help both parties; that I am omni-partial (a Clokeian concept). I explain that I can do this by using the ‘tool of confidentiality’ where that is appropriate in private session, to enable full, frank and challenging conversations where information exchanged will only be disclosed with specific party permission. This is where the fiduciary duty should kick in, in a practical way – it is the obligation not to betray party trust with regard to confidential discussions and the equally important obligation to help the party who is struggling in accessing and understanding critical information to enable them to give informed consent and to be able to genuinely self-determine. To fail to act in such a way amounts to, in my opinion a dereliction of duty.

To my mind, the authors are articulating a set of principles which provide a framework for allowing and justifying the practical approach which some mediators (including myself) may already follow. These refined principles enable mediators to practice without fear of falling foul of the irreconcilable clash between the principles of neutrality and impartiality (which prevent intervention) on the one hand and the principles of self-determination, informed consent and professionalism (which require intervention) on the other.

This concept of mediation requires mediators to be activist and interventionist. Thanks to this book and its authors, it is shown to be possible to do this in an ethical way.

Most of the clients, lawyers and expert witnesses I have worked with in mediation have made it clear that they want mediators to bring their knowledge and experience of dispute resolution into the mediation and not to leave it outside. They don’t want an anaemic mediator who is ‘strictly neutral’ and who sits on their hands – they want someone who is active and where necessary interventionist – otherwise they say, ‘what are you here for – what are you adding?’.

To conclude – this book with its revolutionary new ‘codifying’ of principles provides an ethical means of escaping the convoluted necessity of adhering to neutrality/impartiality – not altogether ‘dumping them’ but quite rightly relegating them to the tools they should be. I applaud and endorse it.

ADR in Australian Legal Education

Alperhan Babacan and Oz Susler

Dr. Alperhan Babacan holds Honours degrees in Law and Political Science, a PhD and a Graduate Certificate in Tertiary Teaching in Learning. Dr Babacan is admitted as a Barrister and Solicitor of the Supreme Court of Victoria and High Court of Australia and has extensive experience in legal practice and legal education. In academia, Dr Babacan has held various senior positions including as Chair of Criminology at Navitas, deputy head of School at Swinburne university and as Director of the Juris Doctor program at RMIT University. Dr Babacan has extensive experience in unit and course development, accreditation and review. He has published very widely in areas of law, criminology and teaching and learning in the higher education sector with a specific focus on the scholarship of learning in legal education.

Much has been written about the benefits of ADR in legal education across the globe and in Australia.  Various reports over the last forty years have criticised the emphasis placed on  traditional Australian legal education – on the teaching of legal rules and doctrine and the focus on analysis and synthesis of these rules, coupled with the adversarial approach to legal education in the absence of skills training. The common thread running through these reports was that law graduates lacked practical legal experience and that there was a need to better align the provision of skills training and education around legal rules and theory in the legal education curriculum, so that students were provided with both academic knowledge and skills necessary for legal practice. The reports encouraged law schools to incorporate specific legal skills into the law curriculum.

Since the 1980s, law schools in Australia have incrementally incorporated the teaching of skills that form the basis of legal practice, evident through the introduction of clinical legal education (CLE) and alternative dispute resolution (ADR). The teaching of ADR to law students provides them with alternative dispute resolution options within an ethical framework, counters the formation of an adversarial legal identity and its vocational nature greatly assists to effectively impart lawyering skills. The most common forms of ADR that are taught in Australian law schools is mediation and negotiation.

In order to effectively build legal skills and to counter the formation of an adversarial legal identity, ADR needs to be included as a stand-alone and significant element of the law curriculum. Yet in Australia, there has been resistance to including ADR in the law curriculum[1] and differing approaches adopted by law schools to incorporate ADR in the law curriculum: it can be included as a specific ADR unit, incorporated into a particular law unit or can form part of a CLE unit.  Generally, ADR is included as an ‘add on’ to law courses with a minimalist approach taken by many law schools to its meaningful inclusion in the curriculum. This approach reflects the convergence of two competing functions of Australian legal education: the provision of education to law students with knowledge of rules and legal theory on the one hand, and the instilling of legal practice and alternative skills on the other.  James advances that legal education in Australia does not consist of a ‘stable and consistent body of knowledge and practices’ (James, 2004) and is characterised by six dominant competing discourses.[2]

He describes these discourses as ‘modes of power-knowledge’ and identifies these as doctrinalism, vocationalism, corporatism, liberalism, pedagogicalism and radicalism.[3]  These six approaches to legal education reflect the competing manner in which skills training is offered in the law curriculum, particularly with respect to the minimalist approach taken by law schools to include ADR in the law curriculum. In recognition of the importance of the key role ADR can play in ‘learning by doing’ and developing lawyering skills, La Trobe University Law School is one of the few law schools in Australia where Dispute Resolution has been included as a compulsory first year law unit.  

There have been calls for the inclusion of ADR as a mandatory part of the law curriculum.[4] These calls are highly justified given that ADR has been a mandatory feature of litigation processes for a considerable period of time. In addition, the inclusion of ADR as a meaningful aspect of the law curriculum will greatly assist law schools to meet the requirements of the Threshold Learning Outcomes (TLOs), developed and adopted by the Council of Australian Law Deans (CALD) in 2009. The TLOs reflect what a Bachelor of Laws graduate is expected to ‘know, understand and be able to do’ as a result of learning and cover areas relating to: knowledge (TLO 1), ethics and professional responsibility (TLO2), thinking skills (TLO 3), research skills (TLO 4), communication and collaboration (TLO 5), and self-management (TLO 6).[5]  

Over the years, some law academics have been advocating for the meaningful inclusion of ADR into the legal education curriculum. Such an undertaking needs to be informed by best practice and evidence and necessitates the allocation of resources by law schools.  Serious consideration needs to be given by law schools to include ADR in the law curriculum in a comprehensive manner to ensure that students are effectively educated and trained for legal practice.  

References

  1. Collins, P. 2015. “Resistance to the teaching of ADR in the legal academy”,  Australasian Dispute Resolution Journal, 26(2): 64-74.
  2. James, N ‘Australian Legal Education and the Instability of Critique’ (2004) 28 Melbourne University Law Review 375-405.
  3. Ibid.
  4. See e.g. Duffy, J. and Field, R. 2014. “Why ADR must be a mandatory subject in the law degree : A cheat sheet for the willing and a primer for the non-believer”, Australasian Dispute Resolution Journal,25(1): 9-19.
  5. Threshold Learning Outcomes. 2010.  Learning and Teaching Academic Standards Project  Bachelor of Laws Learning and Teaching Academic Standards Statement December 2010, Australian Learning and Teaching Council.
    <https://cald.asn.au/wp-content/uploads/2017/11/KiftetalLTASStandardsStatement2010.pdf>.



Negotiation and Political Economy

I just wanted to share a recent post on the Law and Political Economy blog describing my new article, “A Labor Theory of Negotiation: From Integration to Value Creation.”  I’d be delighted for your feedback. Here’s an excerpt from that post that captures some of the argument:

Integration has remained a key organizing concept in negotiation theory, but its meaning has changed over time as the ways in which capitalism is organized and understood have changed. Today, the term integration is synonymous with economic value creation: a negotiation is integrative when it has the potential to leave all parties better off based on their own standards of value than whatever deal they were contemplating initially. In other words, integration means that—because of some added negotiation technique—there are more subjective units of value for negotiators to allocate than they otherwise could have accessed without deploying this technique: that is, the parties have expanded the pie before dividing it.

But integration did not initially rest on a neoclassical economic analytic. It originated with Mary Parker Follett, a late Progressive era thinker. Follett developed a socialist theory of negotiation in response to early twentieth century labor struggle (at least if we take socialism to mean the democratization of power and authority in economic life). Follett aimed to address a particular unifying question: how can labor and capital assume “collective responsibility for production”? Integration served as a hopeful answer: it meant “you can be for labour without being against capital; you can be for the institution.” From this perspective, a negotiation is integrative when—by participating in and also structuring a shared institutional context—all groups find that their desires are working to achieve the same overarching ends.

–Amy J. Cohen, UNSW & Ohio State University

Does Choice of Dispute Resolution Method Affect the Application of the Law?

An Open Question in Australia, Regarding the CISG

The ADRRN Blog encompasses the diverse methods of ADR, arbitration being one of them. This week my colleague Ben Hayward has kindly contributed an article in relation to a significant multilateral treaty utilised in international commercial arbitration known as the CISG. The article is a timely one as we celebrate the 40th year of the CISG. Thank you Ben.

Dr Ben Hayward is a Senior Lecturer in the Department of Business Law and Taxation at the Monash Business School, and completed his PhD at the Monash Law Faculty in 2015. He has previously worked at the Deakin Law School, and in private practice at Arnold Bloch Leibler Lawyers & Advisers. I thank Ben for his contribution to this week’s blog.

This image has an empty alt attribute; its file name is light-bulb-image-for-bens-article.docx.jpg
Photo: Nroose/ Public domain

Author: Ben Hayward

Substantive law doesn’t feature regularly on the Australian Dispute Resolution Research Network blog.  Nevertheless, in today’s post, I’d like to look at one instance where substantive law and choice of dispute resolution method may collide.  This concerns the United Nations Convention on Contracts for the International Sale of Goods: commonly referred to as the CISG.

The CISG is a substantive law treaty developed by the United Nations Commission on International Trade Law. It seeks to harmonise international sales law, around the globe.  Differences in national sales laws are thought to create barriers to trade, increasing merchants’ costs of doing business.  If merchants deal with the same sales law across national borders, their costs of doing business are reduced, and trade is encouraged.

What does this have to do with choosing between dispute resolution methods? There might be a difference in the way the CISG is applied: though at present, we don’t know.

Because the CISG is intended to apply the same way in all jurisdictions where it is adopted – currently 94 States – its interpretation requires sensitivity to that international context.  According to Art. 7(1) CISG:

In the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade.

This provision sets out a rule of autonomous interpretation.  The CISG is to be given its own meaning, rather than being read in light of any particular State’s regular domestic law.  In Australia, therefore, we shouldn’t treat the CISG as if it replicates the rules in the Goods Act 1958 (Vic): even though this might be tempting, where this is the law we’re most familiar with.

Does the choice between dispute resolution methods impact the extent to which such internationally-minded interpretations are achieved?  This is an open question in Australia, and one that I hope to explore in my future research.

Litigation and international commercial arbitration are two different dispute resolution processes that both involve the application of substantive law.  Judges and arbitrators both interpret the CISG, where it applies in the cases they decide.

While the CISG came into force in Australia in 1989 – over 30 years ago – we still don’t have many Australian court cases concerning the Convention.  One of the most highly regarded international databases, the Albert H Kritzer CISG Database, records 28 Australian decisions.  In research I recently conducted for a forthcoming Melbourne University Law Review article, I identified an additional 5 cases via Lexis Advance: bringing the total to 33.  Even still, some of these are appeal decisions, some involve parties opting out of the CISG’s operation, and still others only mention the CISG in passing.  As I address in my forthcoming article and also in prior scholarship, Australian court cases directly applying the CISG tend to take a parochial approach to its interpretation.  It’s not uncommon for judges to equate the Convention’s operation to that of Australia’s ordinary Sale of Goods Acts: even though this is inconsistent with Art. 7(1) CISG’s interpretative rule.

What about the situation in arbitration?  Nearly 20 years ago, Jacobs, Cutbush-Sabine and Bambagiotti suggested that the CISG’s ‘modest treatment’ in Australian case law might be attributed to ‘the prevalence of arbitration, and particularly international arbitration, as a means of resolving dispute[s], although there is no empirical evidence of this’.

If CISG cases involving Australian businesses are being arbitrated rather than litigated, are those arbitral proceedings approaching the Convention in a more internationalist spirit?

At present, this remains an open question.  There is still no empirical evidence concerning the CISG’s use in arbitration involving Australian parties.  Since international arbitration is private/confidential, arbitral awards are not on the public record in the same way that court judgments are.  International evidence does suggest that arbitration is the primary forum for resolving international trade disputes, in a quantitative sense.  Since arbitrators may be chosen for their particular expertise, we might hypothesise that they would be more likely to take the CISG’s international context into account in their decision-making.  Nevertheless, one international study addressing the ‘quality’ of CISG analysis in arbitral awards (compared to court judgments) concluded that the relationship between the Convention and arbitration was ‘a picture of disinterest and neglect … rather than a fruitful marriage’. [1]

The CISG is intended to benefit merchants and their international trading activities.  In future research, I hope to assess the extent to which choices made by Australian businesses between dispute resolution methods impact the Convention’s achievement of this goal.

[1] Petra Butler, ‘CISG and International Arbitration – A Fruitful Marriage?’ (2014) XVII International Trade and Business Law Review 322, 323, 356.

Do consumers and businesses want the benefits of rule of law without the costs of rule of law?

Among its multiple purposes, this Blog offers a space to highlight emerging research in the discipline of dispute resolution. To this end, I have invited Vivi Tan who is undertaking her PhD on the integration of information and communication technologies into dispute resolution processes and its ramifications. Thank-you for sharing Vivi.

Vivi Tan is a PhD student at Melbourne Law School. She researches across fields of consumer protection law, contract law and dispute resolution system and design, including alternative and online dispute resolution.  Her thesis explores the integration of information and communication technologies into judicial and extrajudicial dispute resolution processes and their implications for dispute resolution regulation and practice as well as for consumer protection law. Vivi has also taught Obligations and Contracts in the JD course and is currently teaching in the subject of Artificial Intelligence, Ethics and the Law. She is also an active member of the Centre of Artificial Intelligence and Digital Ethics.

By Vivi Tan

Much of the progress in relation to the implementation of publicly enforced ODR systems is mainly evident in North America[1], the US[2], the UK[3], the EU[4] and China[5]. The types of ODR systems implemented vary according to their level of automation[6] and their positioning within the broader existing legal system or framework. Closer to home, we have seen ODR pilots being undertaken by tribunals such as NCAT and VCAT. A number of studies, commentaries and reports have also unanimously promoted the use of ODR.[7] This reflects the ongoing recognition that ODR can potentially augment and improve existing consumer ADR mechanisms as well as tribunal or judicial dispute resolution mechanisms.

Given the increasing realisation and implementation of ODR within formal legal systems, it is crucial that attention is given to developing and utilising a robust dispute system design (“DSD”) framework to ground the design, implementation and governance of such ODR systems. We must not only focus on the analysis of the efficiency and accessibility drivers behind ODR[8], we must use a theoretically grounded framework to rigorously analyse the suitability of an ODR system as an institution, including the substance and outcomes of the rule choices within the system, the nature and quality of procedural and substantive justice that has been designed, and whether the system can effectively deliver it.[9]

To this end, I drew upon insights from the rich discourse on DSD and developed an analytical DSD ODR framework. The use of such framework should be treated as a distinct activity that has the potential to improve the design and effectiveness of ODR systems and the overall landscape within which they sit.[10] The DSD framework can generate normative values, legal and governance considerations relating to how disputes should be resolved and through what structures. In the consumer context, the framework can be used to analyse critical questions such as whether a consumer ODR system can be designed to enhance the core objectives of consumer dispute resolution; whether its process architecture can be designed to be consistent with the principles and values that are fundamental in a publicly-sanctioned dispute resolution system and vital to the due administration of civil justice and; whether a consumer ODR system can be designed to produce appropriate substantive outcomes?

Put simply, dispute system designers can use the DSD framework to critically analyse considerations and choices relating to:

  1.  the system design (system institutionalisation)
  2. the process design (appropriateness of tools and processes to be used) and
  3. the governance design (procedural and substantive safeguards, systematic oversight and evaluation).

The design of this analytic framework is highly influenced by the contributions in the DSD field from Ury et al, Constantino and Merchant, Bingham, Ostrom, Smith and Martinez, and, from the consumer dispute resolution field, Steffek et al., Hodges et al. and Gill et al.[11] In particular, it attempts to reconcile the earlier DSD contributions, which tended to have a process design focus, with the later contributions which put more emphasis on system design and governance focus. Since a detailed analysis of the DSD framework will be beyond the scope of this article, I will instead provide a summary of what each aspect entails.

The system design aspect is primarily concerned with the institutionalisation of ODR as a dispute resolution mechanism within Australia’s consumer regulatory and policy context. Dispute system designers will need to consider the unique characteristics of consumer disputes and the kinds of goals and objectives behind consumer redress and consumer protection regulations. The designers can then consider whether there needs to be prioritisations or trade-offs amongst those goals and how they are to be reflected in the design of the system.[12] There must also be a critical analysis on the interaction between the ODR system and other dispute resolution processes in the existing consumer redress framework in order to guide the positioning and integration of ODR as either an alternative or an additional model which can augment existing mechanisms of consumer redress.

System design considerations are to be treated as primary considerations which will directly influence and shape the governance and process design considerations. The process design considerations in turn focus on process architecture behind the ODR system including the different process options (prevention, management and resolution), the different resolution approaches (rights vs interest-based, adjudication vs settlement, intermediation) as well as the different functional characteristics. For example, system designers will need to consider the extent of integration of technology such as automated- decision-making functionality or artificial intelligence and its implications on the overall system, process and governance aspects of the ODR system.[13]

Finally, it is important that system designers pay close attention to governance considerationswith a view to fully integrate them onto the process architecture and to minimise the risks that ODR presents to the preservation of civil justice values such as accessibility, legal validity, transparency and accountability.[14]  As part of a systematic oversight and governance strategy, the system must be evaluated using quantitative and qualitative criteria to measure its effectiveness in meeting its goals and its ability to provide access to procedural and substantive justice[15] for consumers.

I hope that this ODR DSD framework can be used to critically analyse the choices relating to how a consumer ODR system should be designed, how its processes should be structured and how the system and its processes can be governed and evaluated. I also hope that the framework will have broader application to other disputing contexts as well.

[1] ‘Civil Resolution Tribunal British Columbia’ <https://civilresolutionbc.ca/&gt;; ‘Condominium Authority of Ontario’ <https://www.condoauthorityontario.ca/tribunal/&gt;; ‘The Platform to Assist in the Resolution of Litigation Electronically (PARLe)’ <https://www.opc.gouv.qc.ca/en/opc/parle/description/&gt;.

[2] The National Center for Technology and Dispute Resolution, ‘Courts Using ODR’ <http://odr.info/courts-using-odr/&gt;; ‘Utah Courts Small Claims Online Dispute Resolution Pilot Project’ <https://www.utcourts.gov/smallclaimswvc/&gt;.

[3] ‘UK Online Money Claim’, GOV.UK <https://www.gov.uk/make-court-claim-for-money&gt;; ‘Online Court and Tribunal Services for Professional Users and the Public’ <https://www.gov.uk/guidance/online-court-and-tribunal-services-for-professional-users-and-the-public&gt;.

[4] ‘EU ODR Platform’ <https://ec.europa.eu/consumers/odr/main/?event=main.home2.show&gt;.

[5] China Justice Observer, ‘COVID-19 Turns All Chinese Courts into Internet Courts Overnight’ <https://www.chinajusticeobserver.com/a/covid-19-turns-all-chinese-courts-into-internet-courts-overnight&gt;; ‘The Litigation Platform of Hangzhou Internet Court’ <https://www.netcourt.gov.cn/portal/main/en/index.htm&gt;.

[6] Vivi Tan, ‘Online Dispute Resolution For Small Civil Claims in Victoria: A New Paradigm in Civil Justice’ (2019) 24 Deakin Law Review 101. In this article, I argued that ODR systems to be differentiated through their level of automation and function. Such classification based on the level of automation focuses on the functionality of the ODR system. At one end of the spectrum, ODR can include technology-based substitution or automation of offline interactions and activities.[1] And at the other end of the spectrum, there are more complex automated ODR systems which have the potential to offer problem diagnosis and resolution capabilities that are fully automated.

[7] VCAT ODR Pilot Team, ‘VCAT ODR Pilot – a Case Study’ (at the ODR The State of the Art International Symposium, 22 November 2018) <https://www.odrmelbourne.com.au/&gt;; ‘NCAT Online Dispute Resolution Pilot’ <http://www.supremecourt.justice.nsw.gov.au/Documents/Publications/Speeches/2016%20Speeches/Wright_120816.pdf&gt;; Tan (n 6); Tania Sourdin, Bin Li and Tony Burke, ‘Just, Quick and Cheap: Civil Dispute Resolution and Technology’ (2019) 19 Macquarie Law Journal 17; Peter Cashman and Eliza Ginnivan, ‘Digital Justice: Online Resolution of Minor Civil Disputes and the Use of Digital Technology in Complex Litigation and Class Actions’ (2019) 19 Macquarie Law Journal 39; Monika Zalnieriute and Felicity Bell, ‘Technology and the Judicial Role’ in The Judge, the Judiciary and the Court: Individual, Collegial and Institutional Judicial Dynamics in Australia (Cambridge University Press, 2020); Michael Legg, ‘The Future of Dispute Resolution: Online ADR and Online Courts’ (2016) 27 Australasian Dispute Resolution Journal 227; Productivity Commission, Access to Justice Arrangements, Inquiry Report No.72 (2014) 68; Victorian Government, Access to Justice Review Report and Recommendations (Volume 1) (August 2016) <https://s3.ap-southeast-2.amazonaws.com/hdp.au.prod.app.vic-engage.files/3314/8601/7221/Access_to_Justice_Review_-_Report_and_recommendations_Volume_1.PDF&gt;; Productivity Commission, Consumer Law Enforcement and Administration (2017).

[8] Tan (n 6); Legg (n 7); Lee A Bygrave, ‘Online Dispute Resolution – What It Means for Consumers’ (Baker & McKenzie Cyberspace Law and Policy Centre in conjunction with the Continuing legal Education Programme of University of NSW, 2002). Bygrave argued that the ‘quick-fix’ enthusiasm surrounding the online facilitation of ADR focused too heavily on the efficiency arguments or drivers such as the apparent speed, flexibility and affordability relative to traditional litigation in the courts as well as the ability to alleviate pressure on the court system. Legg has similarly argued that ‘achieving access to justice requires careful attention on the key [ODR] design considerations including convenience, expertise, impartiality, fairness and costs’.

[9] Lisa Bingham, ‘Designing Justice: Legal Institutions and Other Systems for Managing Conflict’ (2008) 24(1) Ohio State Journal on Dispute Resolution 1, 19, 25–26.

[10] Andrew Le Sueur, ‘Designing Redress: Who Does It, How and Why?’ (2012) 20 Asia Pacific Law Review 17.

[11] William Ury, Jeanne Brett and Stephen Goldberg, Getting Disputes Resolved: Designing Systems to Cut The Costs of Conflict (Jossey-Bass, 1988); Cathy A Constantino and Christina S Merchant, Designing Conflict Management Systems: Guide to Creating Productive and Healthy Organisations (Jossey-Bass, 1st ed, 1995); Bingham (n 9); Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action (Cambridge University press, 1990); Stephanie Smith and Janet Martinez, ‘An Analytic Framework for Dispute Systems Design’ (2009) 14 Harvard Negotiation Law Review 123; Felix Steffek and Hannes Unberath (eds), Regulating Dispute Resolution – ADR and Access to Justice at the Crossroads (Hart Publishing, 2013); Christopher Hodges, Iris Benöhr and Naomi Creutzfeldt, Consumer ADR in Europe: Civil Justice Systems (Hart Publishing, 2012); Chris Gill et al, ‘Designing Consumer Redress: A Dispute System Design (DSD) Model for Consumer-to-Business Disputes’ (2016) 36(3) Legal Studies 438.

[12] Michael J Trebilcock, ‘Rethinking Consumer Protection Policy’ in Charles E F Rickett and Thomas G W Telfer (eds), International Perspectives of Consumers’ Access to Justice (Cambridge University Press, Online Publication, 2009) 68.

[13] Tan (n 6); Robert J Condlin, ‘Online Dispute Resolution: Stinky, Repugnant, or Drab’ (2017) 18(3) Cardozo Journal of Conflict Resolution 717.

[14] Tan (n 6).

[15] Bingham (n 9); Mary Anne Noone and Lola Akin Ojelabi, ‘Alternative Dispute Resolution and Access to Justice in Australia’ (2020) 16(2) International Journal of Law in Context 108.

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